The Judiciary in Central and Eastern Europe : Mechanical Jurisprudence in Transformation? [1 ed.] 9789047429005, 9789004175563

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The Judiciary in Central and Eastern Europe

Law in Eastern Europe A series published in cooperation with the Institute of East European Law and Russian Studies of Leiden University, the Universities of Trento and Graz and the European Academy of Bozen/Bolzano

General Editor

William Simons

VOLUME 61

The titles published in this series are listed at brill.nl/laee

The Judiciary in Central and Eastern Europe Mechanical Jurisprudence in Transformation?

By

Zdeneˇk Ku¨hn

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Ku¨hn, Zdeneˇk. The judiciary in Central and Eastern Europe : mechanical jurisprudence in transformation? / by Zdeneˇk Ku¨hn. p. cm. -- Law in Eastern Europe ; v. 61 Includes index. ISBN 978-90-04-17556-3 hardback : alk. paper 1. Law reform--Europe, Eastern-History--20th century. 2. Courts--Europe, Eastern--History--20th century. I. Title. KJC432.K84 2011 340.30947--dc23 2011038152

ISSN 0075-823X ISBN 978 90 04 17556 3 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

I dedicate this book to Eric Stein.

TABLE OF CONTENTS ACKNOWLEDGMENTS

xiii

INTRODUCTION I. II.

xv

Searching for the Continuity in Legal Thinking of PostCommunist Europe Roadmap of the Book

xv xviii

CHAPTER ONE. THE ORIGINS OF CENTRAL EUROPEAN LEGAL CULTURE I.

The Austrian Legal Tradition

1

II.

The Central European Legal Systems in the Aftermath of World War I II.1. Hungarian Law II.2. Polish Law II.3. Czechoslovak Law

4 4 6 7

III.

The Status of Judges and its Problems

9

IV.

Legal Professions in Central Europe Prior to Communism

14

V.

The Experience of World War II

17

CHAPTER TWO. SOCIALIST LEGAL CULTURE IN CENTRAL EUROPE: AN INTRODUCTION I.

The Success of Stalinization

21

II.

The Political Trials of the 1950s

26

III.

From the 1960s through the 1980s

28

IV.

The Transformation of the Legal System IV.1. Towards Law Comprehensible to All IV.2. The Inclusion of Laymen IV.3. Restricting the Competence of the Courts and the Proliferation of Decrees IV.4. Leaving the Continental Tradition IV.5. The Prosecutor: The Main Guardian of Socialist Legality

31 31 34 36 40 43

viii

V.

The Judiciary in Central and Eastern Europe

Law and Everyday Life

VI. Law Students during Socialism

45 49

VII. The Legal and Social Status of Lawyers and Judges in Particular 52 VIII. Assessing Judicial Independence

57

IX. Conclusions: Central European Legal Culture on the Eve of 1989

62

CHAPTER THREE. FROM STALINIST ANTIFORMALISM TO SOCIALIST TEXTUAL POSITIVISM: CENTRAL EUROPEAN JUDICIAL METHODOLOGY DURING THE COLD WAR I.

Ideologies of Judicial Decision-Making I.1. The Ideologies of Bound and Free Judicial Decision-Making in Comparison I.2. Formalism and Anti-Formalism in Judicial Reasoning I.3. The Decline of Formalism and Bound Judicial Decision-Making in Western Law I.4. Western European Judicial Practice

67 69 74 77 86

II. The Socialist Judge in the 1950s: A Builder of Communism 88 II.1. The Soviet Idea of Law 88 II.1.1. Antecedents: Anti-Positivism II.1.2. Towards Stalinist Law: A New Concept of Law and Its Inner Contradiction II.1.3. The Origins of Stalinist Judicial Activism II.2. The Aftermath of the Communist Takeover and the Beginnings of the Transformation of Judicial Rhetoric 98 II.2.1. Stalinist Decentralized Constitutional Review: A Short-Lived Novelty II.2.2. Marxist Ideology in Adjudication II.2.3. Identification of Law with Morality? II.2.4. The Instrumental Concept of the Law II.2.5. Heavy Emphasis on Criminal Sanctions III. The End of Stalinism and the New Socialist Textual Positivism 116 III.1. Post-Stalinist Desiderata: Stability and Formality 116 III.2. The Contradiction between Claimed Anti-Formalism and Practiced Ultra-Formalism 120 III.3. Analyzing Czechoslovak Case Law of the 1970s and 1980s 124

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III.4. Constructing the Concept of Limited Law 129 III.4.1. Legal Education III.4.2. Socialist Scholarship III.4.3. Static Interpretation of the Law III.4.4. Western Law as Seen by Communist Lawyers III.4.5. The Communist Countries Did Not Need Long-Lasting Codes but Ever-Changing Laws III.4.6. Socialist Judicial Practice in Socialist Jurisprudence and Socialist Jurisprudence in Socialist Judicial Opinions IV. Socialist Legal Injustice: Formalism versus Anti-Formalism Revisited V.

An Attempt to Explain the Rationale of Socialist Ultra-Formalism

145 151

CHAPTER FOUR. INSTITUTIONAL CHANGES AFTER THE COLLAPSE OF COMMUNISM I.

The Replacement of Judges

164

II.

Introducing the Actors II.1. Professional Career Judges Born from Infant Judges II.2. Who Are Central European Constitutional Justices?

169 169 174

III. The Rise of Litigation

176

IV.

The Independence of Judges after the Fall of Communism

178

V.

Towards More Efficient Procedure

182

CHAPTER FIVE. JUDICIAL METHODOLOGY IN A POST-COMMUNIST WORLD: OVERCOMING THE CONCEPT OF LIMITED LAW? I.

II.

The Judicial Discourse on Formalism. The Institutional Background I.1. Unpublished Case Law I.2. Constitutional and Ordinary Courts Discourse between the Czech Constitutional Court and Ordinary Courts. The Ideology of the Bound Judicial Decision-Making Challenged II.1. The Concept of ‘Mechanical Jurisprudence’: A Slow Transformation

191 191 192

199 199

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II.2. Limited Law and Limited Sources of Law II.2.1. Listening to Legal Academia II.2.2. The Issue of Precedent II.2.3. The Czech Constitutional Court on the Binding Force of Precedents of Ordinary Courts III. Textual Positivism: Public Critique and the Position of Legal Science IV.

V.

The Issue of the Binding Force of Decisions of Constitutional Courts IV.1. Case Study: ‘The War of Courts’ in Poland and the Czech Republic IV.2. The Problem of Interpretation Consistent with the Constitution

207

227 232 236 240

Making New Constitutionalism Inclusive vis-à-vis the Ordinary Courts: The Problem of the ‘Over-Centralization’ of Centralized Judicial Review 244 V.1. Former Czechoslovakia: The Empires of Centralized Judicial Review 248 V.2. Poland: Activism of the Ordinary Judges and the Battle over Centralized Judicial Review 252 V.3. On Disobedient Judges: The Polish and Czech Situation Compared 258 V.4. Centralized versus Decentralized Constitutional Review Revisited 260

VI. Learning Abroad: Comparative Constitutionalism and Central European Constitutional Courts

263

VII. New European Judges 267 VII.1. The Application of EU Law prior to EU Enlargement 267 VII.1.1. Examples of Application VII.1.2. Examples of Non-Application VII.2. Central European Judges as New “European” Judges 274 VII.2.1. The Application of European Law: General Maxims VII.2.2. Constitutional Courts VII.2.3. Ordinary Courts I: Textual Positivism and European Law VII.2.4. Textual Positivism and European Law: Case Scenario VII.2.5. Ordinary Courts II: Two Different Conceptions of Law VII.3. Reconsidering the Principle Iura novit curia: Authoritarian versus Authoritative Approach to Law 288

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xi

CONCLUSIONS. RETHINKING THE FUTURE OF THE CENTRAL EUROPEAN JUDICIARY

293

SUBJECT-MATTER INDEX

297

INDEX OF PERSONAL NAMES

309

ABOUT THE AUTHOR

313

Acknowledgements This book is based on much of my work of the last seven years. The book itself could not have been written without the consistent support and advice of two Hessel E. Yntema Professors of Law at the University of Michigan School of Law: Eric Stein and Mathias W. Reimann. Both of these great scholars—and, also, my mentors—have shown me much in the area of comparative law as well as in legal scholarship generally. I appreciate the support of Virginia Gordan, the Assistant Dean of International Programs for the Law School at the University of Michigan School of Law. Thanks to her hospitability and encouragement, Ann Arbor became a place not only of an intense research and excellent scholarship but, also, my second home where I truly enjoyed spending a substantial amount of time between 2001 and 2005. I have discussed various issues raised in this book with the following persons who have contributed to the development of some of my thoughts: Hynek Baňouch, Assistant to a Justice of the Czech Constitutional Court; Josef Baxa, Chief Justice of the Supreme Administrative Court of the Czech Republic; Michal Bobek, Assistant to the Chief Justice of the Czech Supreme Administrative Court; Jiří Boguszak, Professor of Law at the Charles University Law School (Prague); Ladislav Derka, Judge at the High Court in Prague; František Duchoň, Justice of the Constitutional Court of the Czech Republic; Lech Garlicki, Justice of the European Court of Human Rights and a former Justice of the Constitutional Tribunal of Poland; Daniel Halberstam, Professor of Law at the University of Michigan (Ann Arbor); Attila Harmáthy, Justice (ret.) of the Constitutional Court of Hungary and Professor of Law at the Eötvös Lóránd Law School (Budapest); Pavel Holländer, Deputy Chief Justice of the Constitutional Court of the Czech Republic; Jan Kysela, Associate Professor of Politics at the Charles University Law School; Jiří Mucha, Justice of the Constitutional Court of the Czech Republic; Siniša Rodin, Professor of Law of the Zagreb Law School; András Sajó, Justice of the European Court of Human Rights and Professor of Law at the Central European University (Budapest); Goran Selanec, a lecturer at the Zagreb Law School; Ján Štiavnický, Assistant at the Slovak Constitutional Court; Doron Teichman, a lecturer at the Hebrew University (Jerusalem); Jan Vyklický, Judge at the District Court for Prague 2; Eliška Wagnerová, Deputy Chief Justice of the Constitutional Court of the Czech Republic; Miroslaw Wyrzykowski, Justice of the Polish Constitutional Tribunal and Professor of Law at the University of Warsaw; Boštjan Zupančič, Justice of the European Court of Human Rights and a former Justice of the Constitutional Court of Slovenia. My heartfelt thanks go to Mark Gillis with whom I have discussed several issues of this book and who has also carefully and patiently edited my English.

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This book has benefited from the generous financial support from the University of Michigan Václav Havel Fellowship (2002-2003), Michigan Grotius Fellowship (2004, 2005), Milton and Miriam Handler Foundation (Summer Stipend for Issues of European Integration provided by the Milton and Miriam Handler Foundation and the Horace H. Rackham School of Graduate Studies at the University of Michigan). A University of Michigan Center for Russian and Eastern European Studies Mellon Fellowship provided me with the possibility to engage in research in Budapest in the fall of 2003. A Charles University Mobility Grant supported my travel to the United States in 2002 and 2003. The final stages of the preparation of this book have been supported by the Grant Agency of the Czech Republic (Grant No.P408/10/1599: “Methodology of legal interpretation as a guarantee of legal certainty in the democratic state of rule of law”). Last, but not least, I also would like to offer thanks to my Dean, Professor Aleš Gerloch (Charles University Law School), for his support and, also, to acknowledge the many efforts of Ms. Alice Engl of the Institute for Minority Rights at the European Academy of Bozen/Bolzano and of Ms. Ingeborg van der Laan of Martinus Nijhoff Publishers in publishing this work the Law in Eastern Europe series. My warmest thanks belong to my wife Eva for her love and encouragement. In the end, one caveat, several citations, and a notification: during the last phase of the work on this book, I was appointed a Justice of the Supreme Administrative Court of the Czech Republic (2008). The administrative judiciary forms a separate and distinct part of the Czech judiciary. Because I would consider it academically unfair to make a deep analysis of the judiciary and to be part of it at the same time, my book does not analyze administrative judiciary of the Czech Republic (save for a few, rather random, exceptions). Some parts of Chapters 3 and 5 have been published as “The Instrumental Use of Basic Rights by the Stalinist Judiciary”, in: András Sajó (ed.), Abuse: The Dark Side of Fundamental Rights (Utrecht, Eleven International Publishing, 2006) 99-110; “Comparative Law in Eastern Europe”, in Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford University Press, 1st ed. 2006), 215-236; and “Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement”, 52 American Journal of Comparative Law (2004), 531-567. An earlier version of Chapter 5, Part VII, appeared as “The Application of European Law in the New Member State: Several (Early) Predictions”, 6(3) German Law Journal (2005). Lastly, all translations in this work have been made by the author unless expressly noted to the contrary. Zdeněk Kühn Prague, Spring 2011

Introduction I. Searching for the Continuity in Legal Thinking of Post-Communist Europe One of the most widespread problems in post-Communist countries—at least as reflected in numerous complaints—is the quality of the judiciary. Delays, absurd and surprising decisions, and a high level of formalism are often mentioned. Some authors claim that post-Communist law, scholarship and the judiciary are in deep crisis.1 These problems with the judiciary are often mentioned by international organizations as well as politicians. Few post-Communist leaders are, however, as outspoken as former Czech Premier Miloš Zeman (1998-2002), who has written in his memoirs that he knows of no “lazier and more incompetent band than Czech judges,who take lots of money for doing nothing”.2 In this book, I will argue that these post-Communist legal problems are intimately linked to the methodology of Communist law, that an understanding of post-Communist judges and their approaches to law necessarily requires an understanding of Communist judges and their approaches to law. The basic thesis of this work is that there is a deep continuity in the methods of legal reasoning employed by lawyers in the region—starting in the era of Stalinist Communism, continuing through the era of late Communism of the 1970s and 1980s and up to the current post-Communist period—which continuity is manifested in the problems of the first two decades after the collapse of Communism. It can be said that the application and methodology of Communist and post-Communist law is an understudied phenomenon, especially if compared with numerous volumes written on the law and its application in Nazi Germany. Even recent publications dealing with the ‘darker 1

Cf. the similar views expressed on the Czech Republic, Hungary and Poland, respectively, by: (a) a professor of commercial law in Prague and judge of the Court of First Instance of the European Communities, I. Pelikánová, “Nad posláním české právní vědy” [On the Mission of Czech Legal Scholarship], 8 Právní rozhledy (2000), 187; (b) a law professor in Budapest, C. Varga, Transition to Rule of Law. On the Democratic Transformation in Hungary (Hungarian Academy of Science, Institute for Legal Studies, Budapest, 1995); and (c) a professor of law in Lodž and a judge of the Supreme Administrative Court of Poland, M. Zirk-Sadowski, “Transformation and Integration of Legal Cultures and Discourses – Poland”, a lecture at the conference “Implications of Enlargement for the Rule of Law and Constitutionalism in Post-Communist Legal Orders”, European University Institute, Florence, 28-29 November 2003, available at .

2

M. Zeman, Jak jsem se mýlil v politice [How I Have Erred in Politics] (Ottovo nakladatelství, Praha, 2005), 197.

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legacies of law in Europe’ persistently elaborate only National Socialism and Fascism, as if European legal culture had no other ‘darker legacies’.3 In my opinion, a distinctive legal culture fully developed in Communist totalitarian systems; it evolved to a much greater extent than did the legal culture in the Nazi era, which lasted for only twelve years. In contrast with the short-lived Nazi regime, Russian Communism lasted for over seventy years; Communism in Central Europe for over forty years. In this way, Communist reasoning, Communist legal culture and its aftermath offer us a very interesting backdrop to analyze the development of legal culture and the methodology in a long-lasting system which was intellectually almost completely separated from the outside world. Even those authors presently dealing with the post-Communist region primarily analyze the processes of transition from Communism while mostly omitting persistent legacies of Communist legal culture and Communist legal methodology.4 Analyses of the judiciaries in the post-Communist region mostly focus on the new and rapidly developing phenomenon of constitutional courts. There are very interesting treatises describing the emergence and first decade of the new constitutional judiciaries.5 More critical analysis of the post-Communist constitutional judiciaries has appeared in the 2000s.6 On the other hand, the phenomenon of post-Communist ordinary courts has been largely neglected as the novelty of constitutional courts has attracted the bulk of the attention of foreign legal scholars.7 3

C. Joerges and N. Singh Ghaleigh (eds.), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (Hart Publishing, Oxford, 2003).

4

However, one should mention Inga Markovits, a scholar who consistently deals with the issue of the application of Communist law in East Germany. See I. Markovits, “Justice in Lüritz”, 50 Am. J. Comp. L. 819 (2002), 819; or id., Imperfect Justice. An EastWest German Diary (Clarendon Press, Oxford, 1995).

5

An excellent view of an insider is provided by R. Procházka, Mission Accomplished. On Founding Constitutional Adjudication in Central Europe (Central European Press, Budapest, 2002).

6

W. Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, Dordrecht, The Netherlands, 2005). However, the reader will also want to consult more general works on the courts. On the RF Constitutional Court, for example, see Alexei Trochev, Judging Russia: The Role of the Constitutional Court in Russian Politics 1990–2006 (Cambridge University Press, Cambridge, 2008) and, also, id. “Russia’s Constitutional Spirit: Judge-Made Principles in Theory and Practice”, in: Gordon Smith and Robert Sharlet (eds.), Russia and its Constitution: Promise and Political Reality, in: William B. Simons (ed.), Law in Eastern Europe, No.58 (Martinus Nijhoff Publishers, Leiden, Boston, 2007), 53-77.

7

See, however, Kathryn Hendley, “‘Telephone Law’ and the ‘Rule of Law:’ The Russian Case”, 1(2) Hague Journal on the Rule of Law (2009), 241-164, and id., “Are Russian Judges Still Soviet?”, 23(3) Post-Soviet Affairs (2007), 240-274; Alexander Vereshchagin, Judicial Law-Making in Post-Soviet Russia (Routledge-Cavendish, Abingdon, UK, 2007);

Introduction

xvii

The core of my research targets the judicial ideology, the conception of law, and the self-perceptions of judicial work, which are phenomena most likely to be contained in the deepest level of legal culture—that most resistant to change. While post-Communist law has been substantially modified since 1989, all-too-often the methods of reasoning about that law remained unaffected. Considering the fact that, to a substantial extent, the same persons continued in both judicial offices and academic positions, this finding should come as no surprise. A first challenge to the ordinary judiciary came with the new demands that the post-Communist era put on all judges, in fact, on all lawyers. Many ordinary judges—as well as many academic lawyers—have tried to avoid this challenge by stressing the difference between constitutional courts and ordinary courts; the former being activist tribunals assigned the task of enforcing the constitution, the latter being only mechanical agents who are supposed to read laws in a formalistic way. In effect, their claim is that these new demands have been placed solely on constitutional courts. The second, and even more important, challenge came with the 2004 EU Enlargement, when ordinary judges—in the new accession states—had to begin the review of their national government’s policies against the backdrop of the principles of EU law. Suddenly, all judges began to encounter new problems with a vast political impact; in keeping with the doctrine expounded, they may not attempt to assign this task solely to the constitutional courts. What I can offer my readers is to trace the linkage of the largely historical problems of the Communist judiciary to the current state of legal thinking in Central Europe, as it is visible in current adjudication. Although a substantial part of this book deals with history, this work is not historical in the traditional sense. Rather, it is an empirical and theoretical study which analyzes those parts of history which have directly or indirectly shaped the conceptions of contemporary judicial culture. In this book, I mostly deal with the region of Central Europe, by which I mean both countries of the former Czechoslovakia, Poland, and Hungary. For an obvious reason (I was born in Czechoslovakia), my primary focus is on an in-depth analysis of the legal culture of the former Czechoslovakia and both of its successor states. Both Poland and Hungary serve as a frequent point of reference and comparison, as well as evidence that Alexei Trochev and Peter H. Solomon, Jr., “Courts and Federalism in Putin’s Russia”, in Peter Reddaway and Robert W. Orttung, Dynamics of Russian Politics: Putin’s Reform of Federal-Regional Relations (Rowman & Littlefield, Lanham, 2005); and Peter H. Solomon Jr. and Todd S. Foglesong, Courts and Transition in Russia: The Challenge of Judicial Reform (Westview, Boulder, CO, 2000).

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my findings can be generalized by considering similar features of other post-Communist nations. I also cover developments in East Germany during the Communist era, as during that period it was the country most similar to former Czechoslovakia. This book also includes comparisons with some other Communist and post-Communist countries, which for the most part are beset by the same types of problems. Although my work aims at methodological issues, it goes well beyond the scope of legal theory proper. I do not believe that methodological issues can be explained by analyzing the texts of judicial decisions and works of legal theory alone. In addition, I consider issues such as the identity and background of the judges in the Central European region (both past and present), the kind of legal education they receive, and the character of society in Central Europe. Throughout the book, I make frequent comparisons to Western Europe with the use of numerous statistics relating to these and other issues. The link to the present situation is omnipresent; however, only the last two chapters analyze in-depth the current legal problems facing the post-Communist judiciaries and legal systems.

II. Roadmap of the Book The first chapter offers a brief glimpse of Central Europe’s pre-Communist past. It explains the origins of the legal systems of Czecho/Slovakia, Poland and Hungary. This chapter shows that the status of judges in Central Europe began to deteriorate already after World War I, to the extent that some scholars in the region now say that the longest and most stable period of judicial independence in the region was the era between 1867 and 1914—a period when the democratic institutions of the Austro-Hungarian Monarchy functioned and the judiciary was guaranteed its independence by his Imperial Majesty. During World War II, all Central European countries were sooner (the Czech lands in March 1939, Poland in September 1939) or later (the German allies, Hungary in March 1944 and Slovakia in the Summer of 1944) occupied by Nazi Germany and suffered heavy casualties, including the tragic loss of most of their elites. After 1945, Central Europe found itself in the Soviet zone of influence in which ‘popular democracies’ were invariably installed. The second chapter prepares the ground for an in-depth analysis of judicial reasoning and decision-making during the Communist era. This chapter outlines the ideological-political context of Socialist societies and their laws in Central Europe after World War II. It briefly explains the development of Socialist societies in Central Europe from the introduction of Soviet-style Communism until the very end of these regimes. Major changes in the laws on the judiciary introduced during the Socialist

Introduction

xix

era in Central Europe are outlined. Last but not least, the social status of judges and the role of law in society will be analyzed. The third chapter deals with the Socialist judicial methodology in Central Europe. Two periods will be analyzed thoroughly: first, the period of Stalinism of the 1950s, then the era of declining Socialism of the 1970s and 1980s. The chapter begins by laying down the theoretical framework to be used throughout this and the following chapters, explaining how I understand the judicial ideologies of law-making, textual positivism and formalism. The chapter concludes with an in-depth study of Stalinist adjudication. It seems that the Stalinist conception of law suffered from an inner contradiction, as it included both anti-formalist/activist and formalist/ statist versions. If one were to characterize Stalinist legal philosophy fully, it is fair to say that it was Janus-faced. On the one hand, the era of Stalinism emphasized the activism of individuals who were willing to achieve extraordinary working results and fight the foreign enemy. Stalinist judges had to join this trend; they also had to show that they contributed to the rapid building of Socialism. Facing the specific atmosphere of the time, judicial reasoning became surprisingly activist in all cases, not only in political cases of the suppression of the opposition. During that period, judicial reasoning radically departed from its Continental roots. On the other hand, however, the very basic principles of Stalinist legal philosophy were remarkably formalist, dogmatic and state-centered. Formalism of jurisprudence on the one hand and activist legal reasoning on the other hand came into tension which, after the end of Stalinism, was finally resolved in favor of formalism. What follows is the analysis of post-Stalinist dictatorships which, following Václav Havel, I refer to as ‘the post-totalitarian era’, 8 the era of allegedly Marxist cliché to which deep down virtually no one was committed. In this era, Socialist fervor died out everywhere—including in courtrooms—and survived only in the numerous conferences of the Communist Party. Despite the fact that the Communist rulers of that time were obsessed by rules, law in fact mattered very little, and many important issues were resolved outside the legal system proper. After all, Socialist ideology held that law was destined to disappear during the course of the successful Socialist developme Stalinist judges were radical activists and anti-formalists who did not hesitate to rewrite the law in order to satisfy the ideals of the ruling ideology, the aims of societal transformation or, most likely, the needs of the ruling Party. After the decline of Stalinism, however, Socialist legal 8

V. Havel, The Power of the Powerless. Citizens against the State in Central Europe (M.E. Sharpe, New York, NY, John Keane ed. 1985), 27.

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scholarship produced—and the Socialist judiciary put into effect—a strange mix of old-fashioned pre-Socialist positivism and Stalinist and post-Stalinist legal doctrine veiled in Marxist pseudoscientific orthodoxy. The strong formalism of the Stalinist conception of law was fully utilized only after Stalin’s death. I target the era of two last decades of the Communist regimes, when this conception of law and a new ideology of judicial decision-making were already firmly in place. Taking into consideration the similar experiences from the Nazi and Fascist era, I make the unsurprising finding that both the anti-formalist and formalist methodology were equally able to contribute to injustices under Communism. In the final part of the third chapter, I deal in great detail with the problem of the reason for the switch from Stalinist antiformalism to post-Stalinist formalism. The events of 1989 returned the democratic conception of the rule of law to the region. In 2004, eight post-Communist states joined the EU, thus finally ending the region’s formal separation from Western Europe. In the interim, during the last decade of the twentieth century and the first decade of the twenty-first century, the post-Communist countries faced the daunting challenge of the most unique transformation which has probably ever occurred there. Although the transformation of political system has occurred in many European countries—including postwar Germany and Italy, as well as in Spain, Portugal and Greece in the 1970s— the post-Communist countries faced “the radical reorganization of both politics and the economy”.9 The fourth chapter builds a bridge between the Communist era and the post-Communist aftermath. It briefly chronicles the major changes in the laws of Central European nations. It is not the purpose of this chapter to give a thorough description of post-Communist laws on the judiciary and judicial process (which are still in flux); rather, it serves as a foreword to the subsequent detailed description of the methodological problems of post-Communist adjudication. The final chapter deals with the methodological problems encountered with judicial reasoning after the fall of the Communist regimes. It describes the problems of post-Communist judicial argumentation, which seems to be a direct continuation of the last phase of Central European Communism. The Communist legal system had been simplified during the four decades of the self-proclaimed Central European Socialism. 9

A. Bozóki, “Post-communist Transition: Political Tendencies in Hungary”, in: A. Bozóki, A. Körösényi, and G. Schöpflin (eds.), Post-Communist Transition, Emerging Pluralism in Hungary (Pinter Publishers, London, St. Martin’s Press, New York, NY, 1992), 13-29, at 15. “Authoritarian right-wing dictatorships are political dictatorships. They are often more cruel than those of the left, but when they fail, society can more quickly resume its normal functioning.” Id., 15.

Introduction

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This simplification has had a dramatic impact on post-Communist legal problems. For instance, the very fact that publication of case law had been drastically reduced—often to a bare minimum—dramatically has affected the understanding of the law as well as judicial self-perceptions. In order for the new laws and institutions to reflect the burgeoning life of the post-Communist society, new complex theories of law and its application needed to be rapidly developed. Yet all-too-often, the post-Communist conception of law has remained imprisoned in parochial, outmoded positivist approaches. I provide the reader with a plethora of examples of Czech ordinary court decisions, which illustrate the various problems faced with the proper understanding and interpretation of law, the sources of law, teleological argumentation, international law, etc. Rather than merely analyzing and theorizing selected case law of ordinary courts, I show the Czech ordinary courts adhering to textual positivism against the backdrop of the jurisprudence of the Czech Constitutional Court, which has the power to review ordinary court decisions. This approach has been chosen in order to show their contrasting visions of judicial decision-making and should not be seen as some sort of apologia for the Constitutional Court. Moreover, the constitutional courts in the region have not played a uniformly positive role in this development. The constitutional courts often styled themselves as the sole and indispensable guardians of the new constitutions, entering the scene as a deus ex machina to settle issues which cannot be decided by other bodies.10 As a consequence, one of the most fundamental problems—which emerged after 1989—is the ‘over-centralization’ of the judicial system. By this, I mean the widespread feeling that a too unrestrained constitutional court deals with difficult cases of balancing basic rights, while a too restrained ordinary judiciary should continue in the old ways of textual positivism and mechanical jurisprudence. The new circumstances of the enlarged European Union are likely to highlight the problems of post-Communist judicial methodology. That is why the last section of this volume deals with the specifics of the application of European law and the problems which are faced by the judiciaries of the new EU Member States. European Enlargement will make many problems of the post-Communist legal culture even more visible. However, Enlargement also might be seen as providing an opportunity to deal with many of the problems discussed in this book. All post-Communist judges in the new Member 10

Cf. for the use of this term A. Sajó, “Constitutional Adjudication in Light of Discourse Theory”, 17 Cardozo L. Rev. (1996), 1193, 1221, who however has used the same term to criticize the unpredictability of decision-making and the unrestrained activism of the constitutional courts.

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The Judiciary in Central and Eastern Europe

States—not only those sitting on constitutional courts—are now confronted with the completely new situation of the European Union. For this reason they will be pressed to intervene in types of cases which they would not have touched before 2004. Because European law often requires national judges to review their national government’s policies against the backdrop of the principles of EC law, all judges will inevitably face legal problems with a vast political impact. European law thus empowers national courts in a way which will make the old-fashioned description of judicial activity completely out-of-touch with the new reality. The change in judicial practice will force legal scholars to elaborate a new methodology of judicial decision-making which will take into account the realities of a drastically changed juridical world.

Chapter 1 The Origins of Central European Legal Culture Poland, the Czech Republic, Slovakia and Hungary are countries with a rich and ancient tradition within the Continental legal culture.1 Prior to the advent of the Communist regimes, each of these countries had their own highly developed, and often interrelated, legal roots. Before the early 1950s, Czechoslovakia and Hungary—together with Austria, Germany and Switzerland—comprised the Central European Germanic legal family. This was true also of Poland, despite the complex legal system it had in the inter-war period and considerable French legal influence. Until 1944,2 the Slovenian and Croatian legal systems also formed a part of the Austrian (and largo sensu Germanic) family of legal systems.3 In this chapter, I will briefly present the pre-Communist history of the Central European legal systems. I will emphasize the importance that the Austrian legal tradition held for all these legal systems and will show the development in the status of judges in Central Europe as well as the fact that the collapse of the Austro-Hungarian Empire seriously undermined the strength of the national judiciaries in all successor states. Finally, I will mention the impact of World War II, especially the liquidation of national elites and, above all, of qualified lawyers. In this situation—already substantially weakened by the German occupation and post-war transfers of Central European Germans—Central Europe had to face the Stalinist Soviet Union and its concept of law.

I. The Austrian Legal Tradition From the beginning of the modern era until 1918, the legal culture of Central Europe was shaped by the Austro-Hungarian Empire, ruled by the ancient imperial House of Habsburg. The monarchy developed a complex

1

Cf. U. Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”, 45 Am. J. Comp. L. (1997), 5, 30. Mattei did not mention Slovakia, but this state shared the Hungarian legal culture until 1950. Cf. A. Visegrády, “Legal Cultures in the European Union”, 42 (3-4) Acta Juridica Hungarica (2001), 203-217, at 210.

2

The year of formal legal discontinuity of the Yugoslav legal system with the legal order of Royal Yugoslavia.

3

On this, see K. Zweigert and H. Kötz, An Introduction to Comparative Law, Vol.1. The Framework (North-Holland Publishing, Amsterdam, 1st ed., T. Weir transl. 1977), 313.

2

The Judiciary in Central and Eastern Europe

system of bureaucracy, an independent judiciary, and, above all, a highly sophisticated legal culture.4 The Empire originated in 1526 with the accession of the Austrian Duke Ferdinand of Habsburg to the throne in the Czech Kingdom and Hungary. Until the eighteenth century, the Empire was a personal union of more or less autonomous parts united in the person of the kings of the Habsburg House.5 The law of the Empire consisted mostly of local medieval customary law supplemented by some royal ordinances. Modern Austrian law was developed in the late eighteenth century during the Age of the Enlightenment and the absolutist rule of Empress Maria Theresa and, later, of her son Joseph II. During the latter’s reign in the 1780s, the first major modern procedural acts in the Central European region were produced. At that time, the legal localism characteristic of feudalism was replaced in all countries—with the exception of Hungary—by a unified legal culture. Thus, the monarchy became a centralized modern capitalist state.6 In 1811, the General Civil Code (Allgemeines Bürgerliches Gesetzbuch) entered into the force.7 The Austro-Hungarian lands went through a period of industrialization which was centered primarily in Bohemia, the western part of the Czech Kingdom. Consequently, the need for modern laws and an efficient judiciary increased. In 1867, after the constitutional reform resulting in the creation of the dual Austro-Hungarian Monarchy, the Empire became a liberal constitutional monarchy. Although the power of the monarch remained considerably greater than in Western monar4

After the 1867 Compromise (‘Ausgleich’) between Austria and Hungary, the Empire was officially called the Austro-Hungarian Empire. See R.A. Kann, A History of the Habsburg Empire 1526-1918 (University of California Press, Berkeley, Los Angeles, CA, 1974).

5

On this and on the overall significance of the Habsburg Monarchy for Central Europe, see I. Bibó, “The Distress of the East European Small States”, in: Karoly Nagy (ed.), Democracy, Revolution, Self-determination: Selected Writings/ Istvan Bibo (Columbia University Press, New York, NY, Andras Boros-Kazai transl. 1991), 13ff. Bibó views the existence of the Empire and its meaning for Central Europe very critically.

6

Cf. A. Engelmann et al., A History of Continental Civil Procedure (Little, Brown, and Company, Boston, MA, R. Wyness Millar transl. 1927), 628ff.

7

See, generally, W. Ogris, Der Entwicklungsgang der Österreichischen Privatrechtswissenschaft im 19. Jahrhundert (Berlin, de Gruyter, 1968); Heinrich Strakosch, Privatrechtskodifikation und Staatsbildung in Österreich: 1753-1811 (Oldenbourg, München, 1976); and H.E. Strakosch, State Absolutism and the Rule of Law: The Struggle for the Codification of Civil Law in Austria 1753-1811 (Sydney University Press, Sydney, 1967). For basic information see F. Wieacker, A History of Private Law in Europe: With Particular Reference to Germany (Clarendon Press, Oxford, 1995), 266-269.

Chapter 1: The Origins of Central European Legal Culture

3

chies, judicial independence was guaranteed. In addition, the principle of the separation of powers was expressly recognized in the basic laws of December 1867.8 During the nineteenth century, the rules concerning judicial proceedings continued to evolve in a positive direction, culminating in the Austrian Parliament’s enactment of two modern procedural codes: the Criminal Procedure Code of 18739 and the Civil Procedure Code of 1895.10 Both laws were broadly welcomed internationally as examples of brilliant modern procedural codes of the contemporary era.11 The Austrian Civil Procedure Code even influenced some basic paradigms of German civil procedure.12 The legislature in Hungary followed the Austrian example and adopted its Criminal Procedure Act in 1896 and its Code of Civil Procedure in 1911. The Hungarian laws, based on a careful comparison of German, Austrian and other models, enjoyed a very high reputation and were considered by some to be the best procedural codes in Europe.13 For those states, these new codes established what has since come to be seen as the classical Continental procedural rules, which were the norm also in other major states on the European continent. The law of civil procedure was governed by the principles that evidence should be freely evaluated, that trials should be conducted orally and in public and that the judge should enjoy enhanced procedural authority. The criminal jury was introduced in the Austrian lands in 187314 and in Hungary in 1896 and remained in the Czechoslovak legal system until after the Commu8

The basic law No.141/1867 Reichsgesetzblatt (Official Journal of Laws of Austrian Empire, hereinafter “RGBl.”) on the Legislative Power, No.145/1867 RGBl. on the Executive Power and No.144/1867 RGBl. on the Judicial Power. Available (in German) at . For a basic overview from a historical point of view, see Kann, op.cit. note 4.

9

No.119/1873 RGBl.

10

No.113/1895 RGBl. In detail: Engelmann op.cit. note 6, 635-644.

11

For the view of a French professor on the Criminal Procedure Code cf. A. Esmein, A History of Continental Criminal Procedure (Little, Brown, and Company, Boston, MA, J. Simpson transl. 1913), 582: “The Austrian Code of 1873 has received the unanimous approbation of criminalists. It is inspired, no doubt, by the French Code of Criminal Examination, of which it reproduces the type; but how much modified and improved.”

12

P. Gottwald, “Civil Justice Reform: Access, Cost and Expedition. The German Perspective”, in: A.A.S. Zuckerman (ed.), Civil Justice in Crisis. Comparative Perspectives of Civil Procedure (Oxford University Press, Oxford. 1999), 207ff., at 227.

13

Á. Erdei, “Law of Criminal Procedure”, in: A. Harmathy (ed.), Introduction to Hungarian Law (Kluwer Law International, The Hague, London, Boston, MA, 1998), 202.

14

Cf. Esmein, op.cit. note 11, 581-582.

4

The Judiciary in Central and Eastern Europe

nist coup in 1948. In contrast, the principles of procedural law that had prevailed in the eighteenth century were quite the opposite.15 The successor states of the Empire inherited from the bureaucratic Habsburg State deep confidence in written law: they believed—and, thus, sometimes entertained overly optimistic expectations—that statutory law could regulate social relations and transform the society through social engineering.16 This idea seems to be still present in the region. The Austro-Hungarian Monarchy left behind it a legal heritage that survived in Hungary and Czechoslovakia—and, in part, also in Poland— until the first decade of Communism. This was hardly surprising in Hungary as its legal culture during the Empire was national and developed relatively independently of the legislature in Vienna. In Czechoslovakia, although Austrian rule was widely condemned as ‘foreign’, Austrian legal culture was highly honored by lawyers until the Communist coup in 1948. While one should not overlook the importance of post-1918 reforms— such as nationalization of land, the abolition of aristocratic titles, the anti-clerical attitude of the new Czechoslovak government, etc.17—overall the Austrian legal heritage remained deeply engrained. Legal education conformed strictly to the Austrian pattern. The judicial system which had been inherited from the Empire was left untouched: with few exceptions, the Emperor’s judges in the Czech lands remained in their posts—as was also the case for other officials. Last but not least, all major Austrian codes remained in force in the Czech lands without major amendment until the beginning of the Communist era.

II. The Central European Legal Systems in the Aftermath of World War I II.1. Hungarian Law Hungary used to have the most unusual legal system in the Central European region and one of the most unique legal cultures in Europe. Until the

15

See, e.g., Engelmann, op.cit. note 6, 1-81 (the basic principles of Continental procedure), 629 (principles of the procedure based on the Josephine ordinance of 1781).

16

Visegrády, op.cit. note 1, 203-204. See Chapter 2, Part 1 infra.

17

Cf. “K reformě soudnictví” [On the Reform of the Judiciary], 58 Právník (1919), 3031.

Chapter 1: The Origins of Central European Legal Culture

5

late 1950s, it was a civil law system without codification.18 Entirely lacking a civil code, civil law was based on ancient customary law.19 Hungarian jurists jealously guarded their own legal tradition and legal independence against the influence of Roman law, which was considered a tool of the Austrian emperors to assault the autonomy of the Hungarian Kingdom.20 However, Roman law started, in the seventeenth and eighteenth centuries, to influence and reshape Hungarian law—especially gaps in its customary law—as well as to strengthen the central power of the Habsburg kings. However, despite the attempts of the emperors to unify the various legal systems in the monarchy, Hungarian law remained independent; on the other hand, it made skilful use of comparative methods in drafting its new laws. The codes of civil and criminal procedure of the late nineteenth century were clearly influenced by Austrian and German models.21 The spirit of Hungarian customary private law required the judiciary to play an important role in the law-making process. The Curia’s (Supreme Court) decisions were proclaimed formally binding by Act LIX of 1881 on Civil Procedure.22 The fact that they were formally accorded this status does not mean, however, that Hungarian judicial decisions were similar in form to their English counterparts. As Gyula Eörsi explains, before 1959: “Hungarian ‘judge-made’ law has differed from the common law ‘system of precedents’ among others also in that it generalized the tendencies of former judicial practice in a vague way and not by tracing back the judgments to defined precedents, to the ‘rationes decidendi’ of legal cases of bygone days. ‘It is a thesis of law that […]’ the court held, and continued with the formulation of a thesis more or less established in practice, mostly without any reference to the date when, and to the case where, the thesis took a definite shape. More or less defined matter could be found only in the resolutions formulated in the plenary sessions of the Supreme Court, in its decisions for the unity of the law, and in its policy-making rulings.”23

The emergence of modern Hungary after World War I, however, was connected with the disastrous Trianon Peace Treaty of 1920. The Hun18

J.H. Merryman, The Civil Law Tradition (Stanford University Press, Stanford, 1985). Cf. J. Zlinszky, Wissenschaft und Gerichtsbarkeit: Quellen und Literatur der Privatrechtsgeschichte Ungarns im 19. Jahrhundert (Vittorio Klostermann, Frankfurt am Main, 1997).

19

J. Zlinszky, “Two Questions about the Adaptation of Juridical Models: The XII Tables and Hungarian Reception”, 33 (1-2) Acta Juridica Hungarica (1991), 39-56, at 52; and A. Harmathy, “A Survey of the History of Civil and Commercial Law”, in: Harmathy, op.cit. note 13, 11ff.

20

Zlinszky, op.cit. note 19, 52.

21

Cf. generally individual chapters in Harmathy, op.cit. note 13.

22

Ibid., 13.

23

G. Eörsi, Fundamental Problems of Socialist Civil Law (Akadémiai Kiadó, Budapest, 1970), 31.

6

The Judiciary in Central and Eastern Europe

garian Kingdom lost two-thirds of its historical territory and over half of its population. In contrast to the situation that prevailed in the preceding thousand years, the kingdom became ethnically homogenous. More than three million ethnic Magyars consequently found themselves citizens of foreign states. As a result, Hungarian inter-war politics was in a permanent state of crisis, and the society’s pre-war liberal values were undermined.24 II.2. Polish Law Interwar Poland was a multi-ethnic state, composed primarily of a Slavic population of Poles, Ukrainians and Belorussians and, in addition, Germans and Jews. Poland was a state with an exceptional constitutional tradition: in 1791, the old Polish Kingdom enacted one of the first written constitutions in the modern world.25 However, in the late eighteenth-century Poland was partitioned among its three more powerful neighbors, Prussia (after 1871, Germany), Austria-Hungary and Russia. A new Polish state, reborn in 1918, was a rather curious mix of five distinct legal systems. In the southern part of Poland, formerly the Austrian province of Galicia, Austrian law was applicable. German law was valid in the formerly Prussian (German) western provinces of Posen. Russian law was found in the Russian provinces in the East. Further, in some parts of the Polish territory, formerly belonging to Russia, the Napoleonic Civil Code and the legal system taken from the revolutionary France of the early nineteenth century prevailed; this was the legal system of the former puppet Polish Grand Duchy of Warsaw into which the Code Napoleon had been introduced during the Napoleonic wars. To make the legal system of the newly emerged state even more complex, in certain small areas the Hungarian legal system was applied.26 In subsequent developments, 24

See, generally, M. Kovács, Liberal Professionals and Illiberal Politics, Hungary from the Habsburgs to the Holocaust (Oxford University Press, Oxford, New York, NY, 1994), describing the evolution of the Hungarian liberal approach toward professionals— lawyers, engineers and physicians—from the compromise settlement with the Habsburgs of 1867 through the decline of the Hungarian liberal society following the partition of Hungary after World War I. Cf. the monograph published in 1942 by the then Hungarian Minister of Justice, claiming that the liberal traditions of preWorld War I were mistaken. L. v. Radocsay, Die Rechtserneuerung in Ungarn, Schriften der Akademie für Deutsches Recht, Gruppe Recht des Auslands, Nr.1 (C.H. Beck, München, Berlin, 1942).

25

See S. Fiszman (ed.), Constitution and Reform in Eighteenth-Century Poland: The Constitution of 3 May 1791 (Indiana University Press, Bloomington, IN, 1997); and H. Reinalter, and P. Leisching (eds.), Die Polnische Verfassung vom 3. Mai 1791 vor dem Hintergrund der europäischen Aufklärung (P. Lang, Frankfurt am Main, New York, NY, 1997).

26

For details, see W.J. Wagner (ed.), Polish Law Throughout the Ages (Hoover Institution Press, Stanford, CA, 1970).

Chapter 1: The Origins of Central European Legal Culture

7

German legal influence prevailed in the area of public law while French legal culture dominated in general private law.27 II.3. Czechoslovak Law Czechoslovakia was created by virtue of the peace treaties after World War I. It declared its independence in October 1918. Ethnically it was the most heterogeneous state in inter-war Central Europe, in a sense reflecting the ethnic diversity of the perished Austro-Hungarian Empire, though with a majority Slavic-speaking population. It consisted of the lands of the historical Czech Kingdom, with mostly Slavic Czech population but with a substantial German minority, and Slovakia, formerly a part of the Hungarian Kingdom with majority of Slavic Slovaks but, also, with a large Hungarian minority in the South. Between 1918 and 1939 Ruthenia—an underdeveloped province inhabited mostly by Slavic Ukrainians and Ruthenians and Jews—also formed a part of Czechoslovakia. In Czechoslovakia, the old Austrian legal tradition was followed in the Czech lands, and Hungarian legal culture was followed in what is now Slovakia. The Czech legal culture was dominant in Czechoslovakia, however, because most Hungarian experts had left Slovakia for the rump Hungary28 and had been replaced by Czech judges, who were educated in Austrian law and were ignorant of Hungarian language.29 There were only a few Slovak lawyers, many educated in Austrian law at the Czech university in Prague. The duality of the Czechoslovak legal order caused numerous difficulties. Despite all the attempts at legislative unification, Czechoslovak law remained separated into two distinct legal systems until early in the Communist era. In contrast, Polish efforts at unification were much more successful: in the 1950s only Polish civil law remained non-unified.30 27

Polish criminal law was largely modeled on German law, while Polish civil law was largely adopted from the Napoleonic Code. Further, Polish drafters created many of their own original laws. See Z. Gostynski and A. Garfield, “Taking the Other Road: Polish Legal Education During the Past Thirty Years”, 7 Temple Intl. & Comp.L.J. (1993), 243, 250.

28

Cf. Kovács, op.cit. note 24. Most Hungarian officials refused to swear the oath of allegiance to the Czechoslovak Republic. Cf. V. Fajnor, “Judicial Problems. The Old System”, in: R.W. Seton-Watson (ed.), Slovakia Then and Now, A Political Survey (George Allen, London, Orbis Publishing, Prague, 1931), 233-242; and Martin Mičura, “Judicial Problems. B. The Reorganisation of Justice”, ibid., 243-251.

29

A. Hartmann, “Potřeba soudců pro Slovensko” [The Need for Judges for Slovakia], 58 Právník (1919), 175.

30

See, generally, Wagner, op.cit. note 26.

8

The Judiciary in Central and Eastern Europe

Czechoslovakia was the first country in the world which incorporated, in its Constitution, provisions on a constitutional court (1920).31 Its establishment was the result of the revolutionary atmosphere after World War I. As in Austria, in Czechoslovakia the Constitutional Court was a brainchild of the normativists, especially František Weyr, a close collaborator of Hans Kelsen. Although the Court was not entirely insignificant, it suffered from serious setbacks. The initial impetus to review a statute had to be given by either chamber of the Parliament, the Supreme Court or the Supreme Administrative Court. The high courts, however, did not have the power in relation to a pending case; rather, only in abstracto, through the Court acting en banc.32 Another major problem was that a statute could not be reviewed if it had been promulgated more than three years before the date of a petition to annul it.33 In addition, after the terms of the justices appointed in 1921 expired in 1931, the legislature delayed several years (until 1938) before appointing new justices. It was generally understood that the reason for that was the hesitance of the legislature to appoint the body which would exercise control over the legislature’s own law. The new justices were appointed only a few months before the collapse of Czechoslovakia and, thus, did not have time to finish work on a number of important cases pending before the court. As a result of the very restrictive conditions for the initiation of constitutional review, few statutes were ever struck down. Therefore, some scholars dealing with the issue preferred the diffuse system of constitutional review. Eventually, they proposed broadening the Constitutional Court’s powers, improving the system for the selection of justices (e.g., the elimination of the role of political parties, or limitation of eligibility to be a justice only to professors or former judges of the supreme courts) and increasing the number of subjects who would be entitled to initiate proceedings before that Court.34 Although none of these reforms was ever realized, the Constitutional Court did manage to decide an important case even during the first months of the German occupation in 1939.35 31

S.L. Paulson, “On Hans Kelsen’s Role in the Formation of the Austrian Constitution”, in: W. Krawietz, R.S. Summers, O. Weinberger, and G.H. von Wright (eds.), The Reasonable as Rational? On Legal Argumentation and Justification. Festschrift for Aulius Aarnio (Duncker & Humblot, Berlin, 2000), 385-395, at 390.

32

Decision of the Supreme Administrative Court, Boh.adm. 1097/22, 1757/22 (1922).

33

Art.12 of the Act on the Constitutional Court of 1920.

34

For instance J. Krejčí, Principy soudcovského zkoumání zákonů v právu československém [The Principles of Judicial Review of Law in Czechoslovak Law] (Nákladem vydavatelství časopisu Moderní stat, Praha, 1932).

35

See, further, Part V of this chapter infra.

Chapter 1: The Origins of Central European Legal Culture

9

III. The Status of Judges and its Problems When Czechoslovakia, Poland and Hungary appeared on the political scene of Europe in 1918, the tradition of an independent judiciary—which they had inherited from the vanished monarchy—was deeply entrenched. In that prior period, judges in the region were generally conservative and loyal to the monarchy.36 Ten years after the dissolution of Austria-Hungary, Czechoslovak judges—despite the then-prevailing atmosphere that was generally hostile to the old Empire—gave high praise to the distinguished legal culture, independence and efficiency of the Austrian judiciary: “It is generally known that the Austrian judiciary was one of the things of which the Austrian monarchy could be proud. The civil procedure code was admired abroad for its modern character; the efficiency of the judges, in spite of often old-fashioned substantive criminal and civil law, was high. Above all, their moral unity and impossibility of corruption was generally admitted and valued.”37

The 1920 Czechoslovak Constitution guaranteed that state power would be separated into executive, legislative and judicial powers.38 Similarly, the Polish Constitution of 1921 recognized the principle of the separation of powers.39 Although Hungary functioned under an unwritten constitution, the independent position of the judiciary was beyond any doubt.40 However, the Austro-Hungarian successor states inherited judiciaries which had been damaged on other fronts by World War I and its aftermath. The efficiency of judicial administration had been undermined by several factors: the war, the 1919 Communist rebellion and later antiCommunist terror in Hungary, the 1920 war between Poland and Soviet Russia, the ethnic uprisings in the Czech and Slovak borderland, and the economic crisis and common turmoil embracing postwar Europe. In the aftermath of WWI, judges’ salaries drastically declined. At the beginning of 1921, the official journal of the Czech judiciary published the following:

36

Similarly on their German counterparts cf. I. Müller, Hitler’s Justice. The Courts of the Third Reich (Harvard University Press, Cambridge, MA, Deborah Lucas Schneider transl. 1991), 8ff.

37

K. Krcha, “Soudnictví před deseti lety a dnes” [The Judiciary Ten Years Ago and Today], 67 Právník (1928), 596-603, at 596.

38

See the 1920 Czechoslovak Constitution (Art.1 declares the principle of the separation of powers; Chapter II deals with the legislative power, Chapter III with the executive power and Chapter IV with the judiciary).

39

See Art.2 of the 1921 Polish Constitution.

40

See, generally, C. Varga, Transition to Rule of Law: On the Democratic Transformation in Hungary (Faculty of Law of Loránd Eötvös University and Institute for Legal Studies of the Hungarian Academy of Sciences in Budapest, Budapest, 1995).

10

The Judiciary in Central and Eastern Europe

“The judiciary is in a crisis which is not remembered even by the oldest colleagues.”41 In many formerly Hungarian lands lost to other successor states, such as Slovakia or Ruthenia, almost all Hungarian judges and civil servants emigrated to the rump state of Hungary. This resulted in gaps in the judiciary and administration in one part of the state and had to be filled at the expense of other areas. The constitutional principle of the non-transferability of judges was often breached by transfers to which no consent had been given.42 In other nations, there were different problems. For instance, the rump state of Hungary was overwhelmed by lawyers and other highly educated professionals from the formerly Hungarian parts of Czechoslovakia, Yugoslavia and Romania. This situation led to growing racial tension and anti-Semitism in the once liberal and tolerant Hungarian society.43 Despite the misery and instability of inter-war Central Europe, Czechoslovak judges and lawyers managed to remain true to the traditions of the former monarchy and protect the independence of the judiciary. Revolutionary attacks that were made on the independence of the judiciary in the aftermath of the collapse of the Dual Monarchy were strongly condemned in the law journals.44 Similarly, vehement objections were also voiced in the literature when politicians and political daily newspapers criticized decisions made by the two supreme courts and called for the resignation of judges.45 41

“Do Nového roku” [To the New Year], 2 Soudcovské listy (1921), 1. Similarly. K.K. (initials only), “Neodvislost soudcovská” [Independence of the Judiciary], 4 Soudcovské listy (1923), 12-13.

42

Czech judges were sent to Slovakia to fill posts in that part of the country, to the detriment of the situation in the Czech lands. Krcha, op.cit. note 37.

43

Kovács, op.cit. note 24.

44

Cf. “Soudnictví v republice” [The Judiciary in the Republic], 58 Právník (1919), 379, criticizing political and popular attacks on the independence of the judiciary in the young Czechoslovak Republic; and K. Soukup, “Teror ulice” [The Terror of the Street], 59 Právník (1920), 64, condemning non-observance of the law in the aftermath of World War I.

45

In Czechoslovakia, this occurred primarily in relation to the controversial language laws. As Czechoslovakia was a multinational state, the minorities problem was very painful and court decisions on those issues were contentious. In 1928, leading Czechoslovak political daily newspapers, which were close to the government, denounced the decision of the Supreme Court and called for the resignation either of the president of the Court or at least of the chair of the senate dealing with the case. See “Povážlivý zjev” [Alarming Phenomenon], 67 Právník (1928), 261-262; or the article by a judge of the Supreme Court, V. Cícha, “Kritika nejvyššího soudu v parlamentě” [Critique of the Supreme Court in the Parliament], 69 Právník (1930), 106.

Chapter 1: The Origins of Central European Legal Culture

11

In comparison with the conditions in neighboring countries—Weimar Germany and the Austrian Republic—those in Czechoslovakia seemed to be more favorable for the judiciary.46 A difficult situation prevailed also in the authoritarian Polish state. In inter-war Poland, the government brought severe political pressure to bear on the judiciary and even dismissed some judges for their judicial opinions and the positions which they had taken on legal questions.47 Yet, Czechoslovak judges also complained that the judiciary’s institutional position and material conditions had worsened in comparison with those that prevailed under the Austro-Hungarian Monarchy. Furthermore, they had to contend with the assumption that their income should not be higher than that of state officials in general. Their financial situation improved only very slowly48 and was never satisfactorily resolved.49 In spite of the fact that a clear conceptual distinction was drawn in the text of the Constitution between judges and other state bureaucrats, this issue remained a point of contention throughout the existence of the Czechoslovak Republic.50 Similarly, although Article 97 para. 2 of the 1920 Constitution had unambiguously provided that the judiciary’s internal affairs should be regulated by a special act, no such legislation had ever been adopted by Parliament.51 In such circumstances, it was perhaps not

46

“Po ochraně soudů” [Protection of the Courts], 68 Právník (1929), 31, (comparing the public critique of the judiciary in Weimar Germany); and “Útěk ze soudních služeb” [The Flight from Judicial Office], 5 Soudcovské listy (1924), 57 (describing the difficult situation in postwar Austria).

47

A. Fijalkowski, “The Judiciary’s Struggle towards the Rule of Law in Poland”, in: J. Přibáň and J. Young (eds.), The Rule of Law in Central Europe (Ashgate Publishing, Dartmouth, UK, 1999), 242ff., at 245 (and sources quoted at notes 16-18).

48

In Czechoslovakia, salaries were increased by the Act of 22 December 1924, Sbírka zákonů a nařízení (1924) No.290 (hereinafter “Sb. z. a n.”).

49

K. Krcha, “O soudcovské platy” [On Judicial Salaries], 10 Soudcovské listy (1929), 77, criticizing judicial salaries prior to the beginning of the Great Depression; and Capitolinus, “Vrchol znehodnocení soudcovské práce” [The Height of Degradation of Judicial Work], 16 Soudcovské listy (1935), 344, arguing that the best lawyers would never join the judiciary due to the low salaries.

50

Czechoslovak judges were viewed with jealousy by other university graduates employed by the state. K. Krcha, “Nová platová úprava” [The New Legal Rules on Salaries], 6 Soudcovské listy (1925), 152.

51

This omission led to critical comment, for instance, in the last year of Czechoslovak independence, by V. Mikulec, “Soudcovská pragmatika” [Judicial Pragmatics], 19 Soudcovské listy (1938), 14; and K. Pražák, “Jubilejní přání” [Anniversary Wish], 19 Soudcovské listy (1938), 1.

12

The Judiciary in Central and Eastern Europe

surprising that corruption began to appear on the scene: in 1929, for the first time in Czechoslovakia, a judge was sentenced for corruption.52 Among other things, Czechoslovak judges criticized the insufficient number of judges and other personnel—especially the resulting high caseload per judge.53 They had to devote substantial portions of their time to administrative matters. As a result, overwhelmed judges only had time to devote to cases for which they were the presiding judge of the panel; for other cases in which they sat as ordinary members of the panel, they limited themselves to the entirely formal role of concurring with the presiding judge’s decision. In order to assure timely proceedings, judges were forced to breach numerous procedural rules. Written decisions were prepared several weeks or even months after the judgment was announced orally. The number of non-judicial personnel (clerks, secretaries, etc.) fell substantially below reasonable levels. During their training period prior to sitting their judicial examination, judicial trainees did not work on professional matters; rather, they were engaged in technical assistance or worked as typists. Judges were evaluated based on the number of cases they decided, which was generally considered an outmoded and highly inefficient system.54 Moreover they were held responsible for delays caused by the impossible demands placed upon them.55 Many of these issues remain sensitive even in the twenty-first century, and we will encounter them later as some of the general problems faced by the post-Communist judiciary. The old-fashioned system of judicial administration, inherited from the Dual Monarchy, was considered problematic.56 Its incapacity, its outmoded bureaucratic manners were criticized. The judges observed that the administration (particularly the Ministry of Justice) played a crucial role in control of the judiciary, especially as regards the career of an individual

52

“Vážné memento!” [A Serious Warning!], 68 Právník (1929), 318.

53

“Odpověď soudcovské organisace ministerstvu spravedlnosti” [The Reply of the Judicial Organization to the Minister of Justice], with a note by V. Hora, 67 Právník (1928), 14-19.

54

A similar system existed in Poland; see Act No.1107/1923 Dziennik Ustaw (Official Gazette, hereinafter “Dz.U.”).

55

Ibid., 15ff.

56

“Několik poznámek ke schůzi československých soudců” [Several Notes on the Meeting of Czechoslovak Judges], 59 Právník (1920), 68; and V. Hora, “Stav našeho soudnictví” [The Situation of our Judiciary], 66 Právník (1927), 697, both articles provoking public discussion.

Chapter 1: The Origins of Central European Legal Culture

13

judge.57 This situation was considered to endanger judicial independence.58 In the view of many judges, the role of judges in judicial appointments should have been much more important.59 On 4 December 1927, a resolution was adopted at a meeting of judges and prosecutors which criticized the conditions of the judiciary almost ten years after the creation of the new Czechoslovak Republic: “Judges and state attorneys of the Republic, regardless of nationality […] highlight the critical state of our judiciary. They appeal to the consciences of our public and all responsible persons, underlining that this situation is not one of a cultured country; this situation is leading to a catastrophe in our judiciary. We proclaim that this situation entails the exploitation of us, who are purported to be peaceful and politically weak intellectuals. We know that, if we followed punctually all provisions of the procedural codes, in consequence of the current insufficient personnel at courts and the state procuracy, the total breakdown of the judiciary would result, with all its economic and legal impacts. We work three times more than our duty demands at the expense of our health and of our families. The most egregious example of disobedience to the legal order is the fact that our judicial administration is aware of this situation and requires [breaches of procedural law].”60

In conclusion, in the two decades following the fall of Austro-Hungarian Monarchy, the judiciary maintained its independence on the whole. Judges honored their independence and understood it as a necessary condition of their activity.61 When democracy reached a crisis point in Central European in the late 1930s, judges across the region—in sharp contrast to

57

As was observed by the first President of the Czechoslovak Supreme Court Vladimir Fajnor, Soudce a advokát [A Judge and an Attorney] (V. Linhart, Praha, 1933), 14.

58

K. Krcha, “Ne odpolitisování soudců, ale soudní správy” [The De-Politicization not of Courts, but of the Administration of Courts], 18 Soudcovské listy (1937), 53. Similarly, K. Drbohlav, “Justice a její administrativa” [The Judiciary and its Administration], 18 Soudcovské listy (1937), 83.

59

Fajnor, op.cit. note 57, 20.

60

The text of the resolution was published in: 66 Právník (1927), 735-736. Cf. V. Hora, “Stav našeho soudnictví” [The Situation of our Judiciary], 66 Právník (1927), 697. Ironically, this issue is still a very contentious one in the Czech Republic.

61

See the review by the Czechoslovak judge, M. Tobolka, of the German book Die Stellung des Richters im modernen Staat (written by Hans Tigger [Junker u. Dünnhaupt, Berlin, 1936]). According to Tobolka, the German (as well as the Soviet and Italian) situation more closely resembled absolutism than modern society: “It is up to judges carefully to guard their independence and protect it from various external challenges.” See, also, M. Tobolka, “Soudce v totalitním státě” [Judges in the Totalitarian State], 18 Soudcovské listy (1937), 82.

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The Judiciary in Central and Eastern Europe

their German counterparts62—were some of its most devoted advocates.63 Nonetheless, the general prestige of the judges and their financial position declined—especially because of the new, unstable parliamentarian and authoritarian systems, political crises and nationalist tensions of interwar Central Europe.64 Although post-World War I developments, taken as a whole, did not significantly challenge the independence of the judiciary, at least in Czechoslovakia and Hungary, they considerably reduced the strength of the Central European judiciary. Judicial power in Central European was weaker at the outset of World War II than it had been prior to 1914.65

IV. Legal Professions in Central Europe Prior to Communism In the Austro-Hungarian Empire, the legal profession was popular and quite large. The Empire relied on its bureaucrats, and lawyers were the main source of its personnel. In the 1880s, the Austrian Dual Monarchy had 24.6 law-faculty graduates per 100,000 inhabitants, while this figure was 23.0 in Belgium, 17.3 in Italy, 14.0 in France, 12.6 in Germany, 10.5 in Switzerland, 9.1 in The Netherlands and only 2.0 in Russia.66 Hungary was the country with the highest number of private attorneys in Europe. In 1910, there were 4,558 inhabitants per private attorney in the Austrian part of the Habsburg Monarchy, and 2,693 inhabitants per private attorney in the Hungarian part. In the Wilhelmine German Empire, the number

62

Müller, op.cit. note 36, 81.

63

Cf., for example, Volume 77 of the Czechoslovak law journal, Právník, and Volume 19 of the Czechoslovak judicial journal, Soudcovské listy, both issued in 1938, the last year in which Czechoslovakia was democratic. Although both journals remained loyal to democracy, one can observe that the latter provided much firmer support than the former: the judicial journal was firm in its rejection of totalitarianism; the general law journal exhibited, albeit rarely, some sympathy for Nazi Germany.

64

For the most comprehensive description of the situation see V. Brožovský, “Stav našeho soudnictví” [The Situation of our Judiciary], 70 Právník (1931), 41-51.

65

For accord cf. E. Wagnerová, “The Position of Judges in the Czech Republic”, in: J. Přibáň, P. Roberts, and J. Young (eds.), Systems of Justice in Transition. Central European Experiences since 1989 (Ashgate Publishing, Dartmouth, UK, 2003), 163ff. (claiming that “the longest period in which the judges in the Czech lands had the chance to establish themselves as independent was from 1867 to 1918”).

66

The numbers were lower also in the Scandinavian states: Norway 20.5, Denmark 14.8, Sweden 11.9. The statistical note in 30 Právník (1891), 582, citing: J. Conrad, 3 Jahrbuch für Nationalök. und Statistik.

Chapter 1: The Origins of Central European Legal Culture

15

of private attorneys was much lower; the corresponding figure was 5,280 inhabitants per private attorney.67 After the dismemberment of the Habsburg Monarchy, these numbers continued to be high in its successor states; but they were by far the highest in Hungary where, after massive exodus of Hungarian lawyers from lost territories to rump Hungary, there were even 1,595 inhabitants per one lawyer.68 Lawyers enjoyed high social prestige throughout society. They were prominent politicians and were well represented in the Parliament.69 Autonomous associations of practicing lawyers were at the very root of the emerging liberal civil society in Central Europe.70 Legal education in Austria-Hungary and its successor states was based on the Continental tradition.71 The Continental roots of the system were manifested in the high standard and prestige of the academic staff.72 Most Polish scholars had their roots in Austrian legal culture, as the Austrian part of partitioned Poland was far most liberal towards the Poles and their national political and professional elites.73 Hungarian legal scholars basically followed German and Austrian legal thought.74 Czech

67

András Sajó, “The Role of Lawyers in Social Change: Hungary”, 25 Case W. Res. J. Int’l L. (1993), 139.

68

M. Kovács, The Politics of the Legal Profession in Interwar Hungary (Columbia University Press, New York, NY, 1987), 23. In 1930, there were 497 private attorneys per million inhabitants in Austria, 269 in Czechoslovakia, 288 in Germany, 201 in Poland, but 718 in Hungary. In 1930 England, for comparison, there were 433 private attorneys per million inhabitants. Ibid. The lower number in Czechoslovakia was accounted for by the fact that Slovakia became a land virtually without lawyers after 1918, when almost all Hungarian-speaking lawyers left the country to emigrate to rump Hungary. Supra note 29 and the accompanying text.

69

For instance, by the turn of the twentieth century, one-fourth of all deputies in the Hungarian Parliament were practicing private lawyers. Ibid., 4.

70

Ibid., 14-15.

71

See C. Varga, “Philosophy of Law in Central and Eastern Europe: A Sketch of History”, 41 (1-2) Acta Juridica Hungarica (2000), 17-25.

72

The voluminous Czechoslovak books and encyclopedias on law written by large collectives of authors is something which has not (yet) been repeated by the domestic academia.

73

The examples were J. Makarewicz (the main drafter of the 1932 Polish Penal Code, who had published works in Germany before World War I), Fryderik Zoll and many others. See, in detail, J. Fedynskyj, “Prominent Polish Legal Scholars of the Last One Hundred Years”, in: Wagner, op.cit. note 26, 417ff.

74

E.g., Bódog Somló. See I. Szabó, Political and Legal Sciences (Corvina Press, Budapest, 1965), 4ff.

16

The Judiciary in Central and Eastern Europe

legal academia was a direct descendant of its Austrian predecessor and continued in its footsteps.75 In spite of the dismantling of the Dual Monarchy, cooperation continued among members of Central Europe’s legal academia, although it was largely hampered and finally destroyed by the rise of anti-Semitism and Nazi power in Germany and Austria in the 1930s. In Prague, the two law faculties (Czech and German) of the Charles University continued to operate, joined in the 1920s by a Russian law faculty established by emigrants from Soviet Russia.76 In both Austria and Czechoslovakia, Hans Kelsen (in Vienna) and František Weyr (in Brno) developed the school of legal normativism, the ‘pure theory of law’.77 Kelsen and other important Central European scholars commented on decisions of the Czechoslovak courts.78 Austrian judges and academics discussed the laws of other successor states.79 After Kelsen’s lectures in Germany and Austria had been cancelled as the result of German racist policies, he taught at the Prague German University for a few months.80 75

One might note that the attitude of Austrian lawyers of Czech origins towards Germany and its legal culture was cautious: all of them were in favor of the monarchy, and the very existence of multi-national Austria was viewed as the barrier against the influence of the nationalist German Empire. See, especially, articles in the volumes of Právník around 1900.

76

See, for instance, Professor N. Timashev, at the time, a professor of the law faculty in Prague but originally from St. Petersburg (see his work [with one of the alternative spellings of his surname “Timascheff ”: Grundzüge des sovietrussischen Staatsrechtes [Mannheim, Berlin, Leipzig, 1925]); see, also, F.J.M. Feldbrugge, “Nicholas Timasheff ’s Views on the Role of Freedom in Russian History”, and Timasheff ’s “Free Institutions and Struggle for Freedom in Russian History”, 35 (1) Review of Central and East European (2010), 1-5, and 7-25 respectively.

77

Kelsen was an Austrian, but had very fruitful connections with the Law Faculty of Brno (Brünn) and with Czechoslovakia as a whole. Some of his books were published first in Czech (as translations of the then unpublished manuscripts). In fact, Czechoslovakia and Austria were the first nations which followed his model of the concentrated constitutional judiciary. Weyr was an internationally recognized Czech representative of the normative school. See Paulson, op.cit. note 31, 390.

78

See the decision of the Czechoslovak Constitutional Court of 7 Nov. 1922 (concerning the power of the legislature to delegate issues to the executive power, supported by Kelsen); and J. Hoetzel, “Ke sporu o meze moci naøizovací” [On the Dispute concerning the Limits of the Executive Law-Making Power] (critique of Kelsen by Hoetzel), 62 Právník (1923).

79

“Sjezd rakouských soudů” [The Congress of Austrian Judges], 66 Právník (1927), 327328. At their 1927 congress in Vienna, Austrian judges discussed the Czechoslovak divorce law of 1919 and its impact in Czechoslovak case law.

80

See C. Jabloner, “Hans Kelsen. Introduction”, in: A.J. Jacobson and B. Schlink (eds.), Weimar. A Jurisprudence of Crisis (University of California Press, Berkeley, Los Angeles, CA, London, 2000), 67ff., at 68.

Chapter 1: The Origins of Central European Legal Culture

17

V. The Experience of World War II During World War II, Central European nations found themselves under the tutelage of Nazi Germany—either as an occupied nation (Poland, the Czech lands) or as a close German ally (Hungary and the nominally independent Slovakia81). Therefore, we must ask ourselves to what extent legal thinking in those countries was shaped by Fascist totalitarian ideology of this era. I believe that the intellectual influence of that ideology was unimportant. Polish universities were closed by the German occupation authorities, and a substantial number of professors were sent to concentration camps.82 In the occupied Czech lands, the Nazis closed the universities in the fall of 1939. Therefore, the influence of the Nazi ideology on legal academia was virtually ruled out. The articles appearing in Czech legal journals during the war dealt mostly with non-political issues (commercial law, ordinary criminal law, etc.), avoiding thereby any ideological questions or evaluative commentary on the new racist enactments. If they republished German articles, they did so mostly without adding their own commentary.83 The Nazis had no intention or interest to influence either Czech or Polish legal scholarship; they did not plan for the Slavic nations to retain their intelligentsia, such as legal professionals, after the war.84 Moreover, the system of the society remained capitalist. As a consequence, with the exception of racial and political matters, judges were dealing with the same issues with which they had dealt for decades. In this way, the tradition of Roman law and civil law was maintained. In any case, it was not necessary to pressure Czech judges in the Protectorate of Bohemia and Moravia to make political decisions. Such cases (Jewish 81

Both of which were occupied by Germany in 1944.

82

“This was done for the sole reason that that university had been for more than five hundred years a bulwark of all that is Polish.” Gostynski and Garfield, op.cit. note 27, 254 (at note 89). Similarly R.C. Lukas, The Forgotten Holocaust: The Poles under German Occupation, 1939-1944 (Hippocrene, New York, NY, 2nd rev. ed. 1997), 8ff.

83

With the exception of a small group of authors, mostly unknown before the occupation of the Czech lands, who dealt with issues of Jewish laws and German legal philosophy. The oldest Czech legal journal, Právník, became considerably thinner during the occupation; whereas before the occupation (in 1938) the journal had consisted on the average of some 600 pages annually, in 1944 it was only 352 pages long.

84

Obviously this was not the case for Slovakia, where the renamed law faculty in Bratislava continued to operate during the war, because the Slovak state achieved a sort of independence. After 1945, however, its staff was carefully screened. Last but not least, we should bear in mind that throughout the Communist era the Charles University Law Faculty in Prague maintained intellectual leadership in Czechoslovak law.

18

The Judiciary in Central and Eastern Europe

issues, the affairs of German nationals, etc.) were simply taken away from them. The German occupying authorities were basically free to intervene in any case they wished and to transfer it to German courts.85 It is remarkable that the liberal conception of law and judicial power was able to survive at least to some extent under this oppressive regime. In October 1938, three weeks after the collapse of democracy resulting from the Munich Agreement, most judges of the dismembered Czechoslovakia still openly opposed racism and totalitarianism: “Our republic has been democratic, it must remain so; we cannot respond to barbarism with our own barbarism.”86 These sentiments were even more remarkable considering the fact that Czech attorneys had been the first profession (alongside physicians) to initiate racial segregation.87 In November 1939, in the ninth month of the German occupation, Soudcovské listy (the journal of the Czech Judiciary) took the position that the end of the Czechoslovak Republic could not justify relinquishing a claim for judicial independence.88 The Czech Constitutional Court’s activity at the beginning of the Protectorate of Bohemia and Moravia may be seen as an oasis in a desert of Nazi Central Europe. On 28 June 1939—more than three months after the German invasion and the dissolution of Czechoslovakia—the Constitutional Court struck down a 1933 statute as contrary to the principle of judicial independence and other constitutional principles, as laid down in the Czech Constitution.89 Although the nullified law was adopted by 85

See, generally, P. Maršálek, Protektorát Čechy a Morava [Protectorate Bohemia and Moravia] (Karolinum, Praha, 2002).

86

Judge V. Mikulec arguing against the anti-Semitism then prevailing among physicians and private attorneys. It was his opinion that this ideology must not enter the judicial branch. See the report from a conference of the professional organization of Czech judges (Česká zemská jednota soudcovská) of 23 Oct. 1938, three weeks after the Munich Agreement, 19 Soudcovské listy (1938), 333 at 335. A similar sentiment was expressed by Judge Klotz (even though some racial quota in certain professions seemed desirable, the attorneys’ anti-Semitic hysteria was intolerable). But see the views of some of his colleagues, who justified racism based on nationalist positions (including the Chair of Česká zemská jednota soudcovská, Karel Pražák), ibid., 335. Generally, however, most speeches were dedicated to the German question and how to avoid possible future dangers to Czechoslovak society.

87

Racial segregation among Czech attorneys had been introduced with the collapse of Czechoslovak democracy after Munich, but the Czech Bar Association had enacted the racial rules before the German invasion of Bohemia.

88

See “Soudcovská neodvislost v protektorátĕ” [Judicial Independence in the Protectorate], 20 Soudcovské listy (1939), 325. The article (signed only by the initials K.K.) was a tacit but strong critique of the German totalitarian system.

89

Decision of the Court, published in: Sb. z. a n. (1939) No.187, invalidating some provisions of Act No.147/1933 Sb. z. a n. vis-à-vis the judges. The opinion of the Court was published in: 20 Soudcovské listy (1939), 281.

Chapter 1: The Origins of Central European Legal Culture

19

the former Czechoslovak Parliament in 1933, and the consequence of the decision was not directly politically controversial for the new German rulers, the very existence of such a court in Europe in summer of 1939 was quite exceptional. The Constitutional Court—facing an atmosphere of increasingly brutal occupation—ceased to operate soon thereafter, perhaps in the fall of 1939.90 In Hungary, which remained more or less independent from German influence, lawyers—and above all the judiciary—disagreed with the racial politics imported from Germany. The Hungarian legal profession opposed the racial segregation of Jewish lawyers until the Nazi Germany invaded the country in the spring of 1944. And even thereafter, the courts struck down, on formal grounds, acts imposing racial segregation and expropriation. Granted that in the atmosphere of hysteria that prevailed after the extreme fascists took power, this act was rather of symbolic value; but it was nonetheless an important gesture signaling the survival of the liberal tradition of legality and the rule of law in Hungarian society.91 Even in Slovakia, which was basically a puppet state of Germany, the courts opposed some acts relating to Slovak Jews. Most remarkably, the Slovak Supreme Administrative Court, in its decision of 17 December 1943, proclaimed that property expropriated from Jews had to be returned since it had been taken without a proper legal basis.92 One Jewish witness, himself a lawyer, testified that: “The courts behaved in relation to the Jews—within the bounds of possibility—most liberally of all state authorities; this was the case throughout the existence of the Slovak state.”93 The constitution of the Slovak Fascist state, enacted in 1939, even created the institution of the ‘Constitutional Senate’, a sort of constitutional tribunal; but this institution never materialized in practice.94 In conclusion, the influence of the totalitarian German legal thought on the subsequent development in local legal thought was virtually nil. 90

In the Czech literature, the exact date is not known. There was no official decision relating to the suspension or termination of the Court’s activities, and the Court’s own archive was interrupted without any obvious reason in early 1941. Cf. V. Sládeček, “The Protection of Human Rights in the Czech Republic”, in: Přibáň and Young, op.cit. note 47, 82ff.

91

See, generally, Kovács, op.cit. note 24, 106ff.

92

Cited in: L. Lipscher, “Židia v slovenskom štáte 1939 – 1945” [Jews in the Slovak State 1939 – 1945] (Print-servis, Bratislava, 1992), 177 (at note 59, Vth part, 1942/1944); and (in German) Ladislav Lipscher, Die Juden im slowakischen Staat: 1939-1945 (R. Oldenbourg Verlag, München, 1979).

93

Ibid. (Note 60 also contains an example of the courageous behavior of state prosecutors.)

94

Cf. Sládeček, op.cit. note 90, 84.

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The Judiciary in Central and Eastern Europe

However, another consequence of the war era was crucial: the war and Nazi occupation left the Central European countries weak. The Holocaust, German repressions against the intelligentsia in the Protectorate of Bohemia and Moravia and occupied Poland, the war operations, and subsequent post-war expulsion of the Central European Germans drastically changed the landscape and ethnic composition of Central Europe and—to a large extent—reduced the strength of the pre-war intelligentsia.95 Not even counting the losses of Czechoslovak, Polish or Hungarian Germans during the war and through post-World War II transfers, it has been estimated that Hungary lost almost one-half of its professional elite (lawyers, doctors, engineers, etc.), and Czechoslovakia more than one-third.96 The worst losses occurred in Poland which reportedly lost more than onehalf of its professionals. Out of the total of 7,980 attorneys practicing in Poland in the pre-war years, approximately 4,500, or 57 percent, failed to survive; out of 5,171 judges in prewar Poland, approximately 1,110, almost one-fourth, perished.97 Ethical links throughout the society were seriously weakened, and many generally accepted moral values became subject to serious doubt. In short, the Central European nations—ravaged by a brutal war and with it elites decimated—became a much easier target for the incursion of a new political and legal system: Stalinist Socialism.

95

W.I. Hitchcock, The Struggle for Europe. The Turbulent History of a Divided Continent 1945-2002 (Random House, New York, NY, 2003), 100.

96

Kovács, op.cit. note 26, xix.

97

These figures are taken from Andrzej Rzepliński, Die Justiz in der Volksrepublik Polen (Vittorio Klostermann, Frankfurt am Main, Maria Jansen transl. 1996), 30. The fact that a much higher percentage of practitioners than judges died might be attributed to the fact that a substantial number of Polish attorneys were of Jewish descent and, thus, perished during the Holocaust.

Chapter 2 Socialist Legal Culture in Central Europe: An Introduction This chapter should be read as preparation for the in-depth analysis of judicial reasoning and decision-making during Communism, which will be the subject of the following chapter. Many of the issues which appear in this chapter might well be known to the readers—especially those with knowledge of the connection between law and Marxist-Leninist ideology in the societies of ‘really existing Socialism’ (reálný socialismus in Czech and socjalizm realny in Polish), as the Socialist states used to be called. First, the way Soviet regimes were installed in Central Europe is discussed. I show circumstances and consequences of the importation of Stalinist doctrines into Central Europe in the late 1940s and the 1950s. Thereafter, I will explain the second, post-Stalinist dictatorships in the Central European region which I will call—following Václav Havel—‘the post-totalitarian era’. Gradual de-Stalinization had never shaken the basis of the Communist system, which retained its basic repressive functions and some basic concepts of law until the very end of its existence. I will attempt to explain the conception and significance of law in ‘really existing Socialism’ and utopian ideals about an ever increasing simplicity of law. During the Communist era, in fact, the legal system mattered very little, and many important issues appeared apart from the legal system proper. In addition I will attempt to explain, in short, major changes in the legislation on the judiciary during the era of Central European Socialism. Finally, the degree of judicial independence during Communism will be assessed.

I. The Success of Stalinization The success of Stalinization in Central Europe can be attributed to a variety of factors.1 The presence of Soviet troops on Central European soil was an important factor. Further, the postwar mood was generally leftist; the local pre-war governments were blamed for the catastrophes of Czechoslovakia (Munich 1938), Poland (its rapid defeat in 1939) and Hungary (joining the war’s losing side for the second time in two decades).2 1

For a valuable and objective recent explanation cf. W.I. Hitchcock, The Struggle for Europe. The Turbulent History of a Divided Continent 1945-2002 (Random House, New York, NY, 2003), 98-125.

2

See for a wonderful early postwar exposure written in 1946 by an outstanding Hungarian political scientist István Bibó, “The Distress of the East European Small States”, in: Karoly Nagy (ed.), Democracy, Revolution, Self-determination: Selected Writings/Istvan

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The Judiciary in Central and Eastern Europe

The most pro-Communist Central European country was Czechoslovakia. This might be explained by the fact that Czechoslovakia was, in fact, the only country where the Communist ideology was not only imported from abroad but, also, had strong domestic roots. The Czechoslovak Communist Party had been an important parliamentary political party before 1939. In addition, the Munich Agreement was considered a direct betrayal by the nation’s Western allies, the United Kingdom and France. In contrast, Hungarian and especially Polish Communists were much weaker so that Communism had to be installed there by brute force, especially in traditionally anti-Russian Poland. A number of leftist Czech and Slovak intellectuals (more or less) sincerely believed in Socialism and its main proponent, Soviet leader Joseph Stalin. While many Hungarian and especially Polish jurists mostly viewed the Communist ideas on law and the state as something imposed on them, something foreign, their Czechoslovak counterparts supported these ideas as something indigenous, as a homegrown solution to the crisis of prewar Czechoslovak democracy. In the late 1940s, the Communist parties in Poland, Czechoslovakia and Hungary (as well as other new popular democracies) acquired enormous power. The Czechoslovak Government’s commission of inquiry of the crimes committed in the 1950s—established by the reform Communists before the Soviet invasion of Czechoslovakia in 1968—characterized the initial period of Communist rule in this way: “The structure of the institutions of government and the mechanism of governing were such that all power in the political, economic and cultural spheres was concentrated in a small group of Party officials—the political leadership. The Communist Party monopolized all decision-making; from its committees there went out all the directives or proposals for legislative action and orders or directives for the exercise of executive power. Through its committees at all levels the Party assumed virtually the sole responsibility for policy and its implementation down to the minutest details, thereby precluding any effective system of checks and balances.”3

The decisive part of the importation of the Soviet model into Central Europe occurred before 1955. The pre-World War II legal culture was destroyed through the Communist dominance of the legal academia and the attack on the intellectual independence of the law faculties. As the social sciences (and above all legal studies) were considered the center of the previous bourgeois regime, the purges touched this area especially Bibo (Columbia University Press, New York, NY, Andras Boros-Kazai transl. 1991), 13ff. Cf. I. Vida, “Sovietization and the Nation’s Response, 1944-1956”, in: M. Ormos and B. Király (eds.), N. Arató (transl.), Hungary: Governments and Politics 1848-2000, Atlantic Studies on Society in Change (2001) No.109, 275-358. 3

J. Pelikán (ed.), The Czechoslovak Political Trials, 1950-1954. The Suppressed Report of the Dubček Government’s Commission of Inquiry, 1968 (MacDonald, London, 1971), 58.

Chapter 2: Socialist Legal Culture in Central Europe

23

severely.4 Political courses were introduced into law faculty curricula, and legal scholarship was forcibly subjugated to dogmatically practiced Marxism-Leninism. Frequent visits by Soviet experts (especially in the basic subjects, like the theory of law and the state) ensured that domestic legal scholarship would follow the Soviet model. Further, isolation from modern Western legal thought—including Western Marxist thought (and, especially during the Stalinist period, also among the Socialist countries themselves)— substantially subverted the intellectual potency of the scholars.5 The methods of the purge in academia varied in Eastern Europe. Perhaps, the most radical method was chosen by the Czechoslovak Communists. The discrimination against the members of the ‘class enemy’ disabled many talented young people pursuing law studies. Starting in 1950, the young Communist students formed committees to monitor oral examinations and lectures and vote on the fate of legal scholars.6 The young Communist scholars were massively supported by the regime, obtained their professorships unusually early, especially for an academic system peculiar for its rather aged academics. They effectively replaced most of the corps of old academia by the end of the decade.7 The massive purges and misuse of the system were criticized even by Soviet advisors.8 The denunciation of pre-Socialist lawyers was relatively easy. Socialist lawyers were equipped with the only correct science in the world. Their superiority over the old science was not subjective; their superiority was 4

K. Kulcsár, “Position of Lawyers and their Role in the Last Four Decades of Hungary”, 29 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1987), 303-319, at 310. For more details on Hungary, cf. L. Boroa, Á. Gyulavári, and Z. Fleck, “Juristenausbildung und Rechtserziehung in Ungarn von 1945 bis 1990”, in: G. Bender and U. Falk (eds.), Recht im Sozialismus, Analysen zur Normdurchsetzung in osteuropäischen Nachkriegsgesellschaften (1944/45-1989) Bd.2, Justizpolitik (Vittorio Klostermann, Frankfurt am Main, 1999), 337ff.

5

See J. Connelly, “The Sovietization of Higher Education in the Czech Lands, East Germany, and Poland during the Stalinist Period, 1948-1954”, in: M. David-Fox and G. Péteri (eds.), Academia in Upheaval, Origins, Transfers, and Transformations of the Communist Academic Regime in Russia and East Central Europe (Bergin & Garvey, Westport, CT, London, 2000), 141-177, at 152; or, in more detail, id., Captive University: The Sovietization of East German, Czech, and Polish Higher Education 1945-1956 (The University of North Carolina Press, Chapel Hill, NC, 2000).

6

On the so-called ‘studentocracy’ see J. Beňa, “Law Education in Czechoslovakia in the Years 1945-1989 with a Special Focus on the Comenius University, Bratislava”, in: Gerd and Ulrich, op.cit. note 4, 386.

7

For a colorful description see O. Ulč, The Judge in a Communist State. A View from Within (Ohio University Press, Columbus, OH, 1972), 5ff.

8

See Connelly, op.cit. note 5, 143, 148 passim.

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The Judiciary in Central and Eastern Europe

an objective category, resting upon the ‘scientific’ arguments of Marxism.9 That is why Communist law was presented as a pure science—in fact, not unlike the one true religion; it was able ‘to prove’ its superiority over nonSocialist theories in a quasi-scientific (quasi-religious) manner.10 In the early 1950s, legal discourse metamorphosed into the worst forms of monolith adoration of the Soviet model and above all, of its leader, ‘the mightiest genius’ J.V. Stalin.11 Stalin’s name was mentioned in 9

Cf. the genesis of the scientific character of Marxism, H. Kelsen, The Communist Theory of Law (Frederick A. Praeger, New York, NY, 1955), 44: “In presenting their socialism as ‘science’, Marx and Engels produce exactly the same kind of illusive ideology as the bourgeois social theory denounced by them as ideological. By pretending to be a morally indifferent, objective science, Marxian socialism tries to veil the highly subjective character of the value judgment which is at its basis. Bourgeois ideologists use religion as a means to invest the bourgeois state and the bourgeois law with a divine authority, which these social institutions in truth do not have. Marx in his critique of ideology has completely destroyed the authority of religion, but he does not renounce, for his own enterprise, the assistance of an effective authority. The only authority that his critique has left untouched is science. Hence, his Socialism pretends to be science and crowns with the halo of this authority its product: the communist society of the future.” Cf. M. Reimann, “Nineteenth Century German Legal Science”, 31 B.C.L.Rev. (1990), 837, at 848, explaining the special connotation of the term, scientific character (Wissenschaftlichkeit), in the nineteenth-century German social science: “In eighteenth century Germany, Wissenschaftlichkeit (scientific character) had not been a value judgment; in nineteenth century Germany it was the primary indicator of the intellectual dignity of a discipline.” Cf. the British (Marxist) historian Eric Hobsbawm, recounting his leftist beginnings of the 1930s in his remarkable biography: “We like to think of [Marxism] as ‘scientific’ in a rather nineteenth-century sense.” E. Hobsbawm, Interesting Times. A Twentieth Century Life (Allen Lane, Penguin, London, 2002), 96.

10

The rigidity of Soviet Marxists was striking for their Western counterparts. Cf. H. Collins, Marxism and Law (Clarendon Press, Oxford, 1982), 5, explaining that theoretical nature of Marxism does not lie in its infallibility, but in the fact that its methodology looks “at observable, or at least observed, data in order to support a thesis about the meaning of history. It is also scientific in the sense that it holds that all social phenomena should be explicable within the general framework. In principle the theory can be modified or amended in the light of contrary evidence. Many critics of Marxism would argue that the conclusions reached by the early Marxists such as Marx, Engels and Lenin have been raised to the status of irrefutable dogma so that no amount of the contrary evidence can rebut their views, in which case any claim by Marxists to approximate their methodology to that of empirical science would be misleading”. In Collin’s view, however, we should not mix up the repressive political regimes and their official dogmas with Marxism.

11

See “Významný krok k rozvoji naší právní vědy” [An Important Step in the Development of Our Legal Science], 90 Právník (1951), 257. This unsigned article is remarkable especially because it contains an unending line of myriad adjectives attributing to Stalin all imaginable positive qualities, such as greatness, creativity, the mightiest genius, parental relation ‘to us’, etc.

Chapter 2: Socialist Legal Culture in Central Europe

25

almost every law review article published in this era.12 Professional legal knowledge was neglected. The lawyers of the early 1950s ceased to be professionals; the law was presumed to become gradually ‘popular’, easily accessible to all. Although the early 1950s were disastrous for the whole of Central Europe, we can observe some differences among the Central European countries. Unlike the purges in the Czechoslovak legal academia, Polish universities never turned to such a radical measure. In fact, unlike Czechoslovakia, most Polish pre-war professors survived in their chairs throughout the Stalinist era and were able—although only in a very limited way—to assure some continuity in the legal development.13 Although the quotations of Stalin were frequent in Poland as everywhere else in the new popular democracies, prewar literature was also used.14 Nevertheless, in the early 1960s, a Polish Minister of Justice had expressed regret over the development in Poland in this way: “The mechanical opposition of the law, legislation and judicial practice of the Socialist state to the corresponding institutions of the capitalist state has been one of the negative factors exerting an influence on our legal development. The fact that these institutions were the product of a centuries long heritage has been underestimated; in the interests of Socialism it would be better to perfect rather than to suppress them.”15

Consequently, the quality of legal argumentation deteriorated rapidly in the first decade of the Communist rule. The new generations of lawyers were ignorant of many patterns of Continental legal thinking, including Roman law and entire branches of ‘bourgeois’ law (commercial law, securities, etc.). 12

In Czechoslovakia see the volumes of Právník (between 1950 and 1956) and in Poland the law journal Państwo i Prawo (also until 1956). For an early criticism of this habit, see V. Knapp, “Za vyšší theoretickou úroveň naší právní vědy” [For a Higher Theoretical Standard of our Legal Science], 95 Právník (1956), 385, at 388. Knapp noted that this obsession with quotations of Soviet authorities masked the fact that the authors themselves had no knowledge at all.

13

See Connelly, op.cit. note 5, 144.

14

See, for instance, the articles in the fifth volume of Państwo i Prawo (1950). After the period of Polish Stalinism ended, for instance, even the works of Polish normativists (pre-war disciples of Hans Kelsen) were cited. For example, one such disciple was Szymon Rundstein. See J. Wróblewski, Zagadnienia teorii wykładni prawa ludowego [Problems of the Theory of Interpretation of People’s Law] (Wydawnictwo Prawnicze, Warszawa, 1959), 369 (at note 36).

15

Quoted by: R. David and J.E.C. Brierley, Major Legal Systems in the World Today. An Introduction to the Comparative Study of Law (Stevens & Son, London, 3rd ed. 1985), 200.

26

The Judiciary in Central and Eastern Europe

II. The Political Trials of the 1950s After the emergence of the new people’s democracies, which followed the Soviet model, Socialist legality claiming the adherence of state authorities to the law became a basic ideological principle of the Socialist states. However, during the Stalinist era, this principle remained largely on paper. These regimes were real brutal dictatorships of the one all-powerful brilliant leader and his closest devotees. Although the principle of Socialist legality reigned in theory, the actual practice was quite different. During the Prague Spring of 1968, the Czechoslovak Communists themselves admitted that: “After 1948 [the year of the Communist take-over in Czechoslovakia], legal forms were regarded as a formality, important more for appearances than for the actual regulation of social relations.”16 Whenever it was felt to be necessary, basic principles—like the right to a fair trial, the right to counsel or the prohibition of torture—were systematically violated. State authorities practiced torture in order to extract confessions from the accused. In the schizophrenic atmosphere of the Cold War and Stalin’s theory of intensified class struggle, the judiciary served to legitimize imprisonment and executions. In Poland, regular courts were replaced by courts-martial. 17 The most famous show trials were those of top-ranking Communists. The main examples in Central Europe were those of the Hungarian László Rajk (1949) and of Czechoslovak Communist Party Secretary General Rudolf Slánský (1952)—the most renowned show trial of all.18 The trial of Slánský and his ‘accomplices’ was given full mass media coverage; it was perhaps the first trial broadcast in Czechoslovakia by radio.19 16

Pelikán, op.cit. note 3, 138.

17

For a discussion of the Polish situation, see J.R. Kubiak, “Die geheimen Strafprozesse in Polen während der Stalinzeit am Beispiel der geheimen Sektion der Warschauer Gerichts in den Jahren 1950-1954”, Recht in Ost und West (1990), 29; A. Rzepliński, Die Justiz in der Volksrepublik Polen (Vittorio Klostermann, Frankfurt am Main, Maria Jansen transl. 1996), 41ff.; and an interesting interview with the Polish Stalinist J. Berman in: T. Toranska, “Them”: Stalin’s Polish Puppets (Harper & Row, New York, NY, 1987). Cf. also J.S. Micgiel, “Frenzy and Ferocity”: The Stalinist Judicial System in Poland, 1944-47, and the Search for Redress, The Carl Beck Papers in Russian & East European Studies, No.1101 (University of Pittsburgh, Pittsburgh, PA, 1994).

18

See László Rajk and His Accomplices Before the People’s Court (Hungarian State Publishing House, Budapest, 1949), reprinted in: G. Stokes (ed.), From Stalinism to Pluralism. A Documentary History of Eastern Europe since 1945 (Oxford University Press, New York, NY, Oxford, 1991). For the Slánský trial, see Pelikán, op.cit. note 3; E. Löbl, Stalinism in Prague, The Loebl Story (Grove Press Inc., New York, NY, 1969).

19

Television broadcasts did not begin until one year later; see Pelikán, op.cit. note 3, 113.

Chapter 2: Socialist Legal Culture in Central Europe

27

In addition to the infamous purge trials, the regimes in Central Europe held hundreds thousands of lesser known trials, targeting members of the independent intelligentsia, politicians of non-Communist parties, clerics, modest peasants who did not want to submit to collectivization. The trials were prepared in detail, and the accused were forced to confess. Participation by judges was a mere formality; the decisive role was played by the security service, and the outcomes were in any case decided in advance.20 The serious consequences of the trials on the minds and consciences of lawyers participating in them must not be underestimated. On the one hand—although the trials undermined the moral level of the judicial branch as a whole—the majority of the then serving judges did not come into direct contact with these highly political cases. Quite the contrary, only a small segment of the judiciary directly participated in political trials.21 The cases that were determined to be most significant ideologically and politically were decided by special courts.22 The judges, prosecutors and even the defense attorneys were carefully selected and assigned their precise roles. They were people whom the Party trusted and who were able to act out the theater of the trial.23 In this staged play, it was always the prosecutor who was cast in the main role; judges were their obedient servants rather than genuinely independent actors. On the other hand, these trials were “a complete degradation of the law”.24 They undermined the very concept of Socialist legality, making it ludicrous. The stigma of the trials caused general distrust toward judges among a wide public.25 As Czechoslovak reform Communists admitted: “The trials were more than a violation of the law; they inaugurated a state of misrule throughout our society; they signified a state of complete legal uncertainty even for those on the topmost rung of the power ladder. A strong tendency set in to restrict the State in its inner sovereignty. […] The judiciary acted as the executor of these orders and decisions, providing them with a semblance of legality. [...] The trials 20

Ibid., 137. See, also, J. Rupnik, The Other Europe, the Rise and Fall of Communism in EastCentral Europe (Weidenfeld and Nicolson, London, 1989), 112ff.

21

See Pelikán, op.cit. note 3, 256.

22

In Czechoslovakia, for instance, a special State Court was established for this purpose in the Fall of 1948. See K. Kaplan, Report on the Murder of the General Secretary (Ohio State University Press, Columbus, OH, 1990), 201.

23

Pelikán, op.cit. note 3,110.

24

Ibid., 139. For a legalistic evaluation of the errors committed by the State Court of the 1950s, see the Czechoslovak Supreme Court’s 1963 judgment revoking the earlier decision and acquitting one of the persons who had been convicted. See (in English) Löbl, op.cit. note 18, 295ff.

25

Kulcsár, op.cit. note 4, 316.

28

The Judiciary in Central and Eastern Europe affected the entire community, impinging on all spheres of life. They were instrumental in shaping society and its outlook; they left a deep imprint on the future. [...] The vast scale on which law was violated engendered feelings of legal insecurity among a large section of the population. The citizen no longer had a guarantee of legal protection; the Constitution had lost its prestige.”26

III. From the 1960s through the 1980s Throughout this book, I am dealing in great detail with the era of Stalinism. There are several reasons for this. In spite of the fact that this era spanned approximately only one-fourth of the total Communist rule in Central Europe, its impact was tremendous and influenced the Central European regimes until the very last moment of their existence.27 The Socialist system in Central Europe, the Socialist theory of law, the Socialist judiciary—all of them were built during the Stalinist era and under Stalin’s auspices. Subsequent developments consisted either in modifying the system—while still retaining, more or less, its oppressive features—or revaluating Stalinism and radically attempting to reform Socialism (Hungary in 1956, Prague Spring of 1968), which were thwarted by an external force (Soviet intervention). The replacement of Stalinism was hardly possible in a system, the very details of which were developed and constructed by Stalin and his followers. In fact, the de-Stalinization of Central and Eastern Europe often meant only deleting Stalin’s name from quotations, abandoning his major excesses, eliminating the regime’s most terrorist features. Otherwise, however, legal thought (above all, in East Germany and in Czechoslovakia, save for the era of 1968 Prague Spring) followed Stalinist pattern but without mention of his name.28 More than a quarter century of Stalinism in the Soviet Union had penetrated the thinking about law and the state, making it impossible to separate pre-Stalinist ideas from the Stalinist 26

Pelikán, op.cit. note 3, 138ff.

27

Accord: R.D. Grey, “Introduction: How to Understand the Probable Political Future of the Formerly Communist States”, in: R.D. Grey (ed.), Democratic Theory and PostCommunist Change (Prentice Hall, Inc., Upper Saddle River, NJ, 1997), 1, 5 (quoting further literature); or J. Campbell, An Analysis of Law in the Marxist Tradition, Studies in Political Science, Vol.12 (Edwin Mellen Press, Lewiston, NY, 2003), 16-17.

28

The English-language reader can glance, for instance, at the second edition of a monograph by V.I. Terebilov, The Soviet Court (Progress Publishers, Moscow, 1st ed. 1973, Murad Saifulin transl. 1986), 17-25, (translation from the Russian, Sudebnaia sistema v SSSR (Progress Publishers, Moskva, 1986)), to see that no intimation of the Stalinist horrors was even made and that any mention of Stalin’s name was omitted altogether. This book, by a former USSR Minister of Justice in the 1980s, deals with the law on the judiciary in an entirely textual manner, describing provisions of the law applicable at that time.

Chapter 2: Socialist Legal Culture in Central Europe

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ideology—especially in the Socialist states which had been established primarily because of the intervention of the Stalinist Soviet Union. While the era of Stalinism was overwhelmingly uniform and fundamentally disrupted the legal cultures of the affected countries, subsequent developments varied in different parts of the region. In 1956 Poland, the power was seized by national Communists headed by Władysław Gomułka (‘national’ in the sense that they were less dependent on Moscow than in some other countries). Although he proved much more conservative than the Poles had expected, Poland was able to maintain a relatively mild dictatorship, flexible enough to allow for some academic freedom.29 The oppressive Stalinist regime in Hungary, under the Communist ruler Mátyás Rákosi, collapsed seemingly all-at-once during the Hungarian national anti-Communist uprising in 1956. When the Soviets intervened several weeks later, a short era of reprisals followed. However, the new Soviet-installed regime steadily created a relatively tolerant one-party system.30 As the Hungarians themselves put it: “Hungary, in comparison with other Communist countries, was a relatively liberal state. Nevertheless, it was a very special kind of liberalism. The Hungarian legal practice was more liberal than the law itself. In the last decade, the Communist Party and its government did very rarely enforce […] antidemocratic and repressive laws.”31

The Hungarian social sciences were more open than in Eastern Germany or Czechoslovakia; thus, in the last two decades of the Communist regime, Hungarian scholars had the opportunity to travel to the West and to absorb novel ideas which were circulating there.32 As in Poland, Hungarian legal doctrine was thereby able to develop (to a limited extent, at least) along independent lines. It might be plausibly claimed that both the Polish and Hungarian Communist regimes—as well as their legal academia—were more the exception than the rule among Communist regimes in Central and Eastern Europe. The two last decades of Communist rule in Czechoslovakia, by contrast, represented a typical example of a Central and Eastern European Communist country, including its legal system and academia. 29

Cf. also Rzepliński, op.cit. note 17, 63ff.

30

Cf. L. Izsák, “The Kádár Regime and Its Collapse: 1956-1990”, in: Ormos and Király, op.cit. note 2, 359-411.

31

V. Sós, “The Constitutional Paradigm”, 37 (1-2) Acta Juridica Hungarica (1996), 49-62, at 53.

32

A. Bozóki, A. Körösényi, and G. Schöpflin (eds.), Post-Communist Transition, Emerging Pluralism in Hungary (Pinter Publishers, London, St. Martin’s Press, New York, NY, 1992), viii-ix.

30

The Judiciary in Central and Eastern Europe

In post-Stalinist Czechoslovakia, we can discern two distinct periods of historical and legal development. First, it was the era of the 1960s, the era of gradual liberalization, which erupted into the Prague Spring of 1968. Second, the two decades following the Soviet invasion in August 1968 were marked by intellectual stagnation and a closure of society. Beginning in the late 1950s, when Stalinism passed its zenith in Czechoslovakia, there was a continual liberalization of society, its culture and law.33 Unlike Hungary, where the sudden break with Stalinism erupted into the democratic revolution of 1956, the process of liberalization of the Socialist society was gradual. During the 1960s, Czechoslovak lawyers were permitted some collaboration with their Western counterparts. Legal scholars, most of them Stalinists a decade earlier, were able to study abroad and encounter Western legal culture. In fact, legal education during the 1960s—although permeated by Marxist ideologies—achieved some professional success. “Marxism was not handled as a set of quotations, but as a method of learning, taking the world science as its part.”34 In 1968, liberalization reached its peak in the Prague Spring which was brought to an end by the Soviet invasion of 21 August 1968. Thereafter, the new regime launched purges of the Communist Party and academia. Although these purges did not follow the bloody Hungarian example, their impact lasted for twenty years. The hard-line regime maintained its conservative shape until its collapse in 1989. In the early 1970s, the primary targets of the purges in academia were the social sciences and, above all, the law faculties. The most prominent scholars had to leave the university; some of them emigrated,35 others joined the ranks of emerging dissent.36 The tragedy of the subsequent developments was the fact that the expelled professors were then already prominent scholars, most of them originally Stalinist, who also had gained experience in the West during the 33

For one of the first indications of a change of the winds in the legal field, see Knapp, op.cit. note 12, 385. An eminent Czechoslovak scholar of the Communist era, Viktor Knapp, critically remarked that during the Stalinist era the principle of judicial independence was repeatedly violated and that the role played by the Ministry of Justice and state security apparatus was improper and unlawful. In addition, legal education was inadequate, and students did not study ‘the law’.

34

Beňa, op.cit. note 6, 387.

35

The most famous émigré was Ota Weinberger, later a renowned legal theoretician in Graz.

36

Two prominent examples were Petr Pithart and Pavel Rychetský. After the revolution, the former became Czech Prime Minister and subsequently Chairperson of the Senate; the latter: Minister of Justice and Deputy-Prime Minister of the Czech government (and, since 2003, Chief Justice of the Constitutional Court).

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regime’s liberalization during the 1960s. At once, between 1969 and 1971, experienced professors were replaced by second-rank scholars whose only qualification was the Party’s confidence. The social sciences in general—and legal scholarship in particular—remained frozen until the late 1980s.37 After the reform, Communist movements were stamped out in 1968 and the regime’s image changed dramatically. Although still holding up Marx as its icon, the regime lost its very guiding purpose, almost as if everyone had lost faith in the Communist Paradise to come in an unspecified future. Therefore, we might properly call it the post-revolutionary or, following Václav Havel, ‘post-totalitarian’ era;38 an era of empty Marxist clichés to which virtually no one was committed in their heart. No original pieces of Marxist legal theory appeared in Czechoslovakia during the final two decades of the Communist regime. The books of incompetent scholars intellectually exploited older works of their earlier Socialist predecessors.

IV. The Transformation of the Legal System IV.1. Towards Law Comprehensible to All Official Socialist doctrine—faithful to its utopian premises—emphasized that the new legal order must be as simple and comprehensible as possible. Stalinist theoreticians adhered to utopian requirements of simplicity of law. While bourgeois law was “extraordinarily complex in form” and “not easily accessible to the masses”, the Socialist state was expected to make its law comprehensible to “the widest possible strata of the toilers […] Accordingly, Socialist law is incomparably simpler and more accessible in form—as well as far richer in content—than is bourgeois law”.39 Most of the existing bourgeois legal institutions and principles were ‘old-fashioned’, ‘reactionary’, and inappropriate to the new system of the Socialist state. The value of the law consisted in its simplicity and brevity.40 37

See an interview with Pavel Rychetský: “Rychetský, P.: Neodcházím s pocitem dobře vykonané práce” [I Am not Leaving with the Feeling that my Work Has Been Satisfactorily Completed], Lidové noviny (16 August 2003), comparing this situation with Poland and Hungary, where the impact of Communist rule was less painful.

38

V. Havel, The Power of the Powerless. Citizens against the State in Central Europe (M.E. Sharpe, New York, NY, John Keane ed. 1985), 27ff.

39

S.A. Golunskii and M.S. Strogovich, The Theory of the State and Law (translated from the Russian: Teoriia gosudarstva i prava (Akademiia nauk SSSR, Institut gosudarstva i prava, Moskva, 1940), in: J.N. Hazard (ed.), Soviet Legal Philosophy (Harvard University Press, Cambridge, MA, H.W. Babb transl. 1951), 351ff., at 391.

40

Cf. J. Blažke, “O zásadách nového občanského práva” [On the Principles of the New Civil Law], 90 Právník (1951), 11, emphasizing that the new 1950 Czechoslovak Civil

32

The Judiciary in Central and Eastern Europe

At the beginning of the radical transformation of the Czech and Slovak legal order, Minister of Justice Čepička proclaimed that “our new legal order must be comprehensible to all”.41 Some ‘scholars’ of the early 1950s even criticized those ‘suspicious’ academics who wrote so scientifically that it was not easy to understand them.42 This was of course a problem in the Czechoslovak legal system, very close to the German doctrinaire approach, often called ‘professors’ law’. However, not all regimes took these theses equally seriously. The Hungarian and Polish Civil Codes can serve as examples of post-1945 Central European codes which remained true to most of the basic principles of Continental legal culture. In contrast, the 1964 Czechoslovak ‘Socialist’ Civil Code, in fact, annihilated that legal tradition. The 1964 Code attempted to establish new concepts matching Socialist doctrines; the Code was shackled with a completely new terminology.43 For instance, the law of contracts was substantially simplified: many rules, such as the acquisition of property by prescription were abolished altogether;44 others were trivialized; many of them were simply not applied in practice.

Code contained only 570 provisions instead of the 1502 contained in the Austrian Civil Code previously in force in Czechoslovakia (at 17). Cf. the East German propaganda brochure (in English), which proudly proclaimed that their 1975 Civil Code contained only 480 sections (while its predecessor, the 1896 German Civil Code contained 2385 sections). See Law and Justice. The Legal System of the German Democratic Republic (Panorama DDR, Berlin, 1985), 32. Similarly G. Eörsi, Comparative Civil (Private) Law. Law Types, Law Groups, The Roads of Legal Development (Akadémiai Kiadó, Budapest, 1979), 549: “Socialist codification avoids casuistics but does not rest content with framing skeleton rules. Socialist civil codes so far enacted do not contain more than 800 rather short sections.” 41

The Minister’s speech of 1 September 1948, quoted in: Bedrna, “Několik slov upřímné bolševické kritiky” [A Few Words of Sincere Bolshevik Critique], 90 Právník (1951), 248.

42

See ibid.

43

This was the view of J.N. Hazard, Communists and Their Law. A Search for the Common Core of the Legal Systems of the Marxian Socialist States (The University of Chicago Press, Chicago, IL, London, 1969), 313; see the examples given at 329ff: the traditional Romanist Book on Obligations was abolished, replaced by new categories, such as ‘services’, ‘civic aid’, ‘personal use’, etc. See, in greater detail, A.W. Rudziński, “New Communist Civil Codes of Czechoslovakia and Poland: A General Appraisal”, 41 Ind. L.J. (1965), 33.

44

To acquire property by prescription was viewed in the 1960s as contrary to the principles of Socialist morality. Because of the chaos which was created by this novelty, prescription was subsequently reintroduced by the Socialist legislature in 1982 (see Law No.132/1982 Sbírka zákonů [Official Gazette, hereinafter “Sb.”]).

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I would even go so far as to say that the 1964 Czechoslovak Civil Code was the most Socialist civil code among the Socialist legal family.45 The Czechoslovak Civil Code was, in fact, the only ‘truly revolutionary’ civil code in Central Europe, which rejected ‘traditional Western civil law doctrine’ and introduced ‘a new spirit’ into law: “This new piece of civil legislation must be considered as a truly revolutionary civil code, even more revolutionary (in a specific sense) than the French Code Napoleon was in its time. The latter consolidated the gains achieved by the French Revolution, at the same time incorporating them in the traditional legal system of Justinian’s Corpus Juris and the usus modernus Pandectarum. The new Czechoslovak Civil Code rejects traditional Western civil law doctrine, explodes its categories of the law of obligations and law of contracts, introduces its own categories such as services and civic (mutual) assistance, and deprives certain everyday transactions of their contractual character. These changes transcend by far the purely technical legal field.”46

In contrast, the Polish Civil Code—adopted in the same year as its Czechoslovak counterpart—attempted to preserve continuity with the tradition of Continental law. The only major structural deviation was the exclusion of family law from the field of civil law.47 Similarly, the Hungarian Civil Code—enacted in 1959—was based on earlier pre-war proposals and retained the substantial bulk of the civilian heritage. For this reason, it seems that continuity also prevailed in Socialist Hungarian civil law.48 After 1989, the Hungarian Civil Code did not need any drastic revision. And again, unlike Czechoslovakia, the Hungarian tradition of comparative law continued to a substantial extent unbroken; the only radical interruption occurring in the first decade of the Communist era. The comparative agenda played an important role, e.g., in the 1977 amendments to the Civil Code.49 45

No Socialist civil code went so far as did the Czechoslovak Civil Code. Cf. I.S. Markovits, “Civil Law in East Germany – Its Development and Relation to Soviet Legal History and Ideology”, 78 Yale L.J. (1968-1969), 1, 36-37.

46

Rudziński, op.cit. note 43, 48. Cf. (at 41): “A traditional continental lawyer is struck by the abandonment of the centuries old civil law system of legal concepts and categories. [...] Suffice to mention only two of them: property and obligations (contracts).” And (at 43): “There is no trace of the effort [in the Czechoslovak Code] so evident in the new Polish Civil Code of 1964 to preserve the unity of the traditional system and institutions and to accommodate the inescapable differences and deviations within the old system.”

47

Ibid., 47ff. passim. Cf. ibid., 68: “The Polish code certainly is not revolutionary when compared with the Czechoslovak code.”

48

A. Harmathy, “A Survey of the History of Civil and Commercial Law”, in: A. Harmathy (ed.), Introduction to Hungarian Law (Kluwer Law International, The Hague, London, Boston, MA, 1998), 11ff., at 17.

49

Ibid., 19ff.

34

The Judiciary in Central and Eastern Europe

However, differences on paper did not result in greatly divergent practices. Everyday life in Socialist countries was simplified, as I hope to demonstrate below. As a result, even some remnants of the bourgeois heritage in Central Europe were rarely used. Because of the nature of Socialist society, many of these rules in books were not used in practice, and judges did not develop the skills needed to apply them. For instance, the Polish Commercial Code was never formally repealed during the Socialist era. However, it remained in a de facto ‘dormant’ state, from which it was resurrected only after the fall of the Communist regime.50 IV.2. The Inclusion of Laymen Popularization of the judiciary in Central Europe resulted in the inclusion into the legal profession of untrained laymen (most of whom became judges and prosecutors), whose only qualification was a course at a law faculty lasting only several months, a deep distrust in the old legal methodology and legal scholarship,51 and the trust of the Communist Party.52 Shortly after the Communists had seized power, it was even possible for a manual worker to be transformed—through the magic of distance learning—into a judge or a prosecutor.53

50

C. Brzezinski, “The EC-Poland Association Agreement: Harmonization of an Aspiring Member State’s Company Law”, 34 Harv. Int’l L.J. (1993), 105, 110: “[…] the Commercial Code was rarely used during this period and thus had only a negligible impact on the system of central planning, and only certain state-owned companies, such as foreign trade organizations and select banks, were organized as Commercial Code companies.” A. Rzepliński, “Principles and Practice of Socialist Justice in Poland”, in: G. Bender and U. Falk (eds.), Recht im Sozialismus, Analysen zur Normdurchsetzung in osteuropäischen Nachkriegsgesellschaften (1944/45-1989), Bd.3, Sozialistische Gesetzlichkeit (Vittorio Klostermann, Frankfurt am Main, 1999), 18-19.

51

Characteristically cf. the opinion of a ‘worker’s prosecutor’ (as he was referred to in the conference papers), see Pavel Uhlíř’s contribution to the conference on Stalin’s importance for Czechoslovak legal science, “O stranickosti právní vědy” [On the Party Affiliation of Legal Science], 90 Právník (1951), 299, where he denied any influence of the older legal science and even criticized the new Socialist scholars for not being ‘popular’ enough.

52

Kulcsár, op.cit. note 4, 311ff.; and Rzepliński, op.cit. note 17, 41.

53

Ulč, op.cit. note 7, 9ff. For Czechoslovakia cf. also Beňa, op.cit. note 6, 392-393. For a discussion of similar crash courses in Hungary, see L. Boroa, Á. Gyulavári, and Z. Fleck, “Juristenausbildung und Rechtserziehung in Ungarn von 1945 bis 1990”, in: Bender and Falk, op.cit. note 4, 348-350; in East Germany, see I. Markovits, “Justice in Lüritz”, 50 Am. J. Comp. L. (2002), 819, 836; and in Poland, see Rzepliński, op.cit. note 17, 33ff.

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35

Following the Soviet model,54 laymen were also brought into the judiciary in another capacity, as so-called ‘lay assessors’.55 The function of the Socialist lay assessor was theoretically on par with that of the professional judge. It meant that they decided both questions of law and fact in any lawsuit, no matter how complex. This was a reflection of the Communist utopian thesis about the permanent simplification of law and its accessibility to laymen.56 While the mixed bench was known in pre-Nazi Germany after the jury system had been rejected there in the 1920s,57 most Central European criminal systems had employed the jury trial since the Austro-Hungarian times; thus, before 1945, lay assessors were not a familiar institution there.58 However, during forty years of Communism, the jury system became identified with the United States in particular and with Common Law in general—its indigenous tradition forgotten entirely. This is why the jury has never been revived in Central Europe.59 As a rule, a panel of the district court in Poland, Czechoslovakia and Hungary was composed of one professional judge and two lay assessors, 54

On this point, see the critical views of S. Kucherov, The Organs of Soviet Administration of Justice: Their History and Operation (E.J. Brill, Leiden, 1970), 343ff. Before the 1917 October Revolution, Russia also had followed the jury system in criminal trials, and Kucherov, a Russian émigré, had been strongly in favor of it.

55

One of the first acts of the Communist regime in Czechoslovakia was to abolish the ‘bourgeois’ jury system (see the Law of 22 December 1948 on the Popularization of the Judiciary, Sb. (1948) No.319). See, in detail, Ulč, op.cit. note 7, 19ff. In Hungary, see the Hungarian Law XI of 1949. Reprinted in: Review of Hungarian Legislation, Special Issue: Administration of Justice in the Hungarian People’s Republic (Hungarian Lawyers’ Association, Budapest, 1955). As regards Poland, see the 1950 law on the organization of courts (Dziennik Ustaw [Official Gazette, hereinafter “Dz.U.”] (1950) No.39 item 360); and L. Kos-Rabcewicz-Zubkowski, “Polish Constitutional Law”, in: W.J. Wagner (ed.), Polish Law Throughout the Ages (Hoover Institution Press, Stanford, CA, 1970), 215ff., at 269.

56

A case might be assigned to a senate of professional judges but only in exceptional situations if justified by the complexity of the case, such as patent or trademark cases in Hungary, etc. A. Rácz, “People’s Assessors in European Socialist Countries”, 14 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1972), 395-415, at 406.

57

In Germany the jury trial had been replaced in 1924 by the system of mixed bench. Cf. Weber’s critique of the former jury system, in: M. Rheinstein (ed.), Max Weber on Law in Economy and Society (Harvard University Press, Cambridge, MA, E. Shils and M. Rheinstein transl. 1969), 352.

58

In Hungary, although the jury was still on the books, it had been ‘suspended’ by the reactionary regime after the defeat of the Communist Hungarian Soviet Republic in 1919. Rácz, op.cit. note 56, 399 (at note 20).

59

Eventually, the jury has been reintroduced—albeit not into Central Europe but into Russia, where it has been operating in criminal cases since the late 1990s. See J. Diehm, “The Introduction of Jury Trials and Adversarial Elements into the Former Soviet Union and Other Inquisitorial Countries”, 11 J. Transnat’l L. & Pol’y (2001), 1.

36

The Judiciary in Central and Eastern Europe

all of whom voted equally; therefore, in principle, the two lay assessors could decide the case contrary to the opinion of the judge. Except for the first decade of the Communist era, the higher courts usually comprised a majority of professional lawyers.60 Especially during the first years of the regime, these lay assessors were used as a tool of control by the regime over the old judges. The lay assessors “represented direct political influence on the judges who had been educated prior to the Socialist revolutionary transformation”.61 Later, however, the lay-assessors lost this purpose and became only a decorative part of the Socialist civil and criminal procedure, without much practical impact. Their participation in complex proceedings and difficult legal questions was entirely formal. The institution was highly unpopular among the professional judges who questioned its very existence.62 As a judge of the late 1950s had noted: “I have never felt myself to be a victim of the assessors, and I doubt whether any other judge has. Indeed, the opposite view, that the people’s judges were useless dummies and mere Socialist window dressing, was closer to the truth, with this significant qualification: Whether the lay assessors were active or passive depended almost entirely on how they were handled by the presiding professional. It was generally agreed among the judges that the assessors could be utilized as a valuable source of knowledge concerning matters about which a lawyer would know next to nothing. […] Most of the assistance I received occurred during civil suits involving agriculture. Since I was totally ignorant about farming, almost anyone could have fooled me if I had not had at my side the emergency assistance of a lay assessor who was, himself, a farmer.”63

IV.3. Restricting the Competence of the Courts and the Proliferation of Decrees The competences of courts were substantially limited. In the area of the activity of nationalized enterprises, disputes were decided not by courts 60

Cf. the Hungarian Act IV of 1972, selected sections of which have been reprinted (in English) in K. Kulcsár, People’s Assessors in the Courts. A Study on Sociology of Law (Akadémiai Kiadó, Budapest, 1982), 136ff., the Hungarian Law XI of 1949, op.cit. note 55. Similarly, in Czechoslovakia, lay assessors formed a majority only in the senates of district or county courts acting as courts of first instance. Cf. sections 15-32 of the Law on the Organization of the Judiciary, Sb. (1961) No.62; and sections 15-34 of the Law on the Organization of the Judiciary and the Elections of Judges, Sb. (1964) No.36.

61

Kulcsár, op.cit. note 60, 37 (emphasis in the original).

62

This was true in all three countries. For Czechoslovakia, see A. Bajcura, “Výsledky ankety o postavení sudcov” [The Results of the Poll on the Status of Judges], 51 Právný obzor (1968), 834, 837; for Poland and Hungary, see Rácz, op.cit. note 56, 395.

63

Ulč, op.cit. note 7, 23.

Chapter 2: Socialist Legal Culture in Central Europe

37

but, rather, by state arbitration tribunals;64 the exception was that of Hungary where state arbitration had been abolished in 1973 and the competence of the general courts had been reintroduced.65 Obviously, for issues of commerce to be dealt with by an arbitrator would not seem strange to a Western observer. However, the resort to state arbitration was mandatory and did not depend on the choice of the parties. The basic rationale for having Socialist state arbitration was the presumption that a dispute between state enterprises was not a dispute in the ordinary sense of the word, i.e., between distinct parties who had divergent interests and individual legal capacity. After all, a state enterprise was considered to form a part of the state. Moreover, the issue in dispute was supposed to be rather a question of fact than one of law. Therefore, the Socialist scholars claimed, that type of litigation was much more of a technical than a legal character.66 Judges allegedly did not have sufficient knowledge to decide issues of the planned economy: “Judges are not sufficiently educated in economy and they are not aware of all the problems of the planned economy.”67 “[E]xperience has shown that ordinary courts of law are not suitable to try and settle issues”, a Socialist scholar has explained.68 64

For the origins of the state arbitration tribunals under Lenin, see Hazard, op.cit. note 43, 127ff. In Hungary, see L. Faragó, “L’arbitrage en Hongrie”, 6 (1-2) Acta Juridica (1964), 193, describing in detail the history of arbitration and its practice in the 1950s and 1960s; on Poland, see J. Topiński, “Państwowy arbitraż gospodarczy” [State Economy Arbitration], 5 Państwo i Prawo (1950), 24; and on the Czech Republic, see J. Štěpina, “Význam a úkoly státní arbitráže” [The Significance and Purpose of State Arbitration], 91 Právník (1952), 437, 439ff. For a brief discussion, see K. Zweigert and H. Kötz, An Introduction to Comparative Law, Vol.1. The Framework (North-Holland Publishing, Amsterdam, 1st ed., T. Weir transl. 1977), 314. For the most thorough elaboration of the issue as it stood in 1973, see V. Knapp, “State Arbitration in Socialist Countries”, in: K. Zweigert and U. Drobnig (eds.), International Encyclopedia of Comparative Law, Vol.XVI, chapter 13 (Martinus Nijhoff Publishers, Leiden, 1982).

65

Knapp, op.cit. note 64, 3. Cf. in Poland E. Wengerek, “Zakres sądowej ochrony w sprawach cywilnych” [The Scope of Protection by Law Courts in Civil Cases], 30 (3) Państwo i Prawo (1975), 44, discussing the Hungarian law and arguing that Poland should have followed this route as well. But, see, S. Włodyka, “Rola prawa w reformie gospodarczej” [The Role of Law in Economic Reform], 39 (6) Państwo i Prawo (1984), 3, who opposed the transfer of economic matters to the ordinary law courts. Cf. the anticipation of the abolition of the state arbitration system in the late Communist era in Poland, S. Włodyka, “Sądownictwo gospodarcze (Uwarunkowania i założenia)” [The Economic Courts (Conditions and Assumptions)], 42 (5) Państwo i Prawo (1987), 21.

66

Štěpina, op.cit. note 64, 439ff.

67

Ibid., 440.

68

Knapp, op.cit. note 64, 2.

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The Judiciary in Central and Eastern Europe

State arbitration was a tool to enhance the economy through the speedy decision making of these non-judicial bodies, deciding in a flexible way.69 This substantially eased the judiciary’s docket.70 As a result, however, Central European judges lost one of their traditional judicial competences.71 Moreover, while state arbitration was presumed to be less formal, an arbitrator not being so strictly bound by the letter of law, a judge was generally viewed as a mechanical machine that strictly adhered to the letter of law.72 In addition, many labor disputes were settled extra-judicially— through the authority of special arbitration bodies and lay tribunals—and only claims which were not settled in this way were decided by the courts.73 Similarly, judicial proceedings were excluded in various administrative matters and replaced by proceedings before administrative agencies.74 Hungarian and Czechoslovak judges were strictly bound by all legal rules, i.e., they had no power to review the conformity of regulations with statutes. This was a substantially retrograde development in comparison with the pre-Communist legal tradition. According to Article 19 of the 1869 Hungarian Act IV on the judiciary: “The judge is bound to proceed and administer justice on the ground of the statutes, decrees made and promulgated on the basis of statutes and in agreement with cus-

69

Topiński, op.cit. note 64, 26ff.

70

For instance, in Poland in 1988 state arbitration decided 87,209 disputes while the judiciary disposed of 177,690 civil cases. Rzepliński, “Principles and Practice of Socialist Justice in Poland”, in: Bender and Falk, op.cit. note 50, 8.

71

In Czechoslovakia, state arbitration had been established by Law No.99/1950 Sb., in Poland by the 1949 Decree on the State Economic Arbitration, Dz.U. (1949) No.46 item 340 (replaced in 1975 by the Act on State Economic Arbitration, Dz.U. (1975) No.34 item 183). Similarly, cf. East Germany and its 1951 decree, Gesetzblatt der Deutschen Demokratischen Republik (hereinafter “GBl.”) I (1951), 1143, as quoted by: Markovits, op.cit. note 53, 819, 848.

72

This was the view of Jiří Boguszak, one of the most important theorists of this era. See J. Boguszak, Základy socialistické zákonnosti v ČSSR [Foundations of Socialist Legality in the Czechoslovak Republic] (Československá akademie vĕd, Praha, 1963), 99.

73

This was true in the majority of Socialist countries, except for the USSR and GDR. See L. Trócsányi, “The Settlement of Labour Disputes by Courts or through Official Channels in the European Socialist Countries”, 11 (1-2) Acta Juridica Academiae Scientiarum Hungaricae (1969), 37-60. For the GDR, cf. I.S. Markovits, “Pursuing One’s Rights Under Socialism”, 38 Stan.L.Rev. (1986), 689, 691ff.

74

Cf. critically in Poland Wengerek, op.cit. note 65. Cf. I. Markovits, “Socialist vs. Bourgeois Rights – An East-West German Comparison”, 45 U.Chi. L. Rev. (1977-1978), 612, 619-620.

Chapter 2: Socialist Legal Culture in Central Europe

39

toms of legal force. The judge cannot call into doubt the validity of statutes properly promulgated, still in concrete cases he may decide on the legality of decrees.”75

Similarly, the 1920 Czechoslovak Constitution proclaimed that judges dealing with a particular matter had the power to review the validity of regulations (nařízení); as for statutes (zákony), they might only review their due publication (Art.102). It is true that the phenomena of the proliferation of decrees has also occurred in Western Europe, especially in the course of post-WWII European integration. However, in Communist Europe, the very paradigm of Continental legal thinking—the classical hierarchy of legal sources—in fact largely disappeared; the unitary legal order composed of the enumerated sources of law remained on paper only and was replaced by a massive number of directives and decrees of an extremely diverse character,76 some of them even not promulgated in the official gazettes.77 The decisive role of the statute—typical for the region—was, to a certain extent, abandoned. Most important questions were contained in by-laws, ministerial decrees and government regulations.78 For instance, while in pre-Communist Hungary (before 1949) between 50 and 60 statutes had been enacted annually, 75

Cited in: A. Rácz, “Control of Norms and Law-application”, 25 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1983), 387-401, 392. Cf. Art.107 of the 1831 Belgian Constitution as well as Italy and Germany (M. Cappelletti, Judicial Review in the Contemporary World (Bobbs-Merrill Inc., New York, NY, 1971), 53). But see Art.89 of the 1920 Austrian Constitution.

76

This situation was contrary to some theoretical claims, which were not realized in practice. See J. Boguszak, “Právní záruky socialistické zákonnosti v Československé republice” [Legal Guarantees of Socialist Legality in the Czechoslovak Republic], 98 Právník (1959), 113, 120. According to Boguszak, regulations were to be adopted only on the basis of an act of parliament. However, because the courts were bound by all general enactments in the legal order, including regulations, his claim remained theoretical.

77

Promulgation is another Continental paradigm, created at the climax of the era of European absolutist regimes. It is based on the theory that, in order for a legal act to become law, it must be formally published in the official digest sanctioned by the state. If an act is not promulgated in such a digest, it cannot become law.

78

For a critical view of the situation prevailing during the later period of Communist rule in Hungary, see P. Schmidt, “Konstitutsionno-pravovye voprosy sistemy istochnikov prava VNR” [Constitutional Problems of the System of Sources of Law of the People’s Republic of Hungary], 27 (1-2) Acta Juridica Academiae Scientiarum Hungaricae (1985), 133-160. According to Schmidt, the role of parliament in lawmaking was insufficient. For a Polish critique, see S. Wronkowska, “The Sources of Law in the Constitution of the Republic of Poland of 2 April 1997”, Droit Polonais Contemporain, Revue trimestrielle/Polish Contemporary Law, Quarterly Review (1998) No.1-4, 59-70. On analogous problems in the former Soviet Union, see A.Kh. Saidov, Comparative Law (Wildy, Simmonds & Hill, London, W.E. Butler transl. & ed. 2003), 202 (translation of the 2000 Russian-language original).

40

The Judiciary in Central and Eastern Europe

that number decreased sharply after 1950 to two or three statutes per year (disregarding acts on the state budget and national planning).79 As acts of parliament came to consist more of abstract principles and policies than of rules, they were losing their normativity.80 Lawyers were driven out of the law-making process; their role was much more one of mere ‘service personnel’.81 Despite the fact that Polish judges enjoyed the power to set aside a law ranking below an act of parliament,82 when the Polish Constitutional Tribunal was established in 1986, one of the first problems it faced was an unconstitutional chaos in the Polish system of sources of law.83 That was also the reason for the inclusion, in the 1997 Polish Constitution, of a detailed chapter on sources of law.84 IV.4. Leaving the Continental Tradition Although all Central European countries enacted new procedural codes (both civil and criminal),85 in many respects they remained within the 79

Schmidt, op.cit. note 78, 152. On 31 December 1979, there were a total of 112 acts of parliament, 528 decrees, 518 decrees of the council of ministers and 1540 ministerial decrees in force in Hungary (and many more ministerial orders in addition thereto). See K. Kulcsár, “The Role of Law-making in the Modernization Process”, 25 (1-2) Acta Juridica Academiae Scientiarum Hungaricae (1983), 3-21, at 18.

80

Kulcsár, op.cit. note 79, 19.

81

Schmidt, op.cit. note 78, 155.

82

It was explicitly confirmed by a 1957 Supreme Court decision. For a further reference, see R. Procházka, Mission Accomplished. On Founding Constitutional Adjudication in Central Europe (CEU Press, Budapest, New York, NY, 2002), 100 (at note 93) and the accompanying text.

83

Decision of 9 May 1989, Kw. 1/89: “[…] all lawmaking activities must be sanctioned by constitutional provisions or by principles constitutionally enacted in legislation, i.e. issued by virtue of the Constitution and appropriate to grant lawmaking powers within specific limits. Hence, the use of lawmaking powers by state organs may not be arbitrary but they must exercise the powers granted to them. This understanding of the lawmaking system means that there is no freedom to use various forms of enactments as one wishes […].” Translated in: Constitutional Tribunal: A Selection of the Polish Constitutional Tribunal’s Jurisprudence from 1986 to 1999 (Trybunał Konstytucyjy, Warszawa, J. Oniszczuk compl. 1999), 35.

84

Wronkowska, op.cit. note 78.

85

In Hungary, the new Socialist Civil Procedure Code was passed in 1952 (Law III/1952) and the Criminal Procedure Code in 1951 (Law III/1951, replaced by a new code in 1973). See (in English): The Code of Civil Procedure (Ministry of Justice of the Hungarian People’s Republic, Budapest, 1977); the older Criminal Procedure Code (in German): E. Heller, Die Ungarische Strafprozessordung; III. Gesetz vom Jahre 1951; durch Gesetz vom Jahre 1954 modifizierter und in einheitliche Fassung gebrachter Text (W. de Gruyter, Berlin, 1958); and the new Criminal Procedure Code (in English): Act I of 1973 on Criminal Procedure (Ministry of Justice of the Hungarian People’s Republic, Budapest, 1976).

Chapter 2: Socialist Legal Culture in Central Europe

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Continental heritage.86 One might even say that the painful problem for the future was that they remained too deeply entrenched in some features of the classical Continental tradition, incapable of observing what was happening on the other side of the Iron Curtain during the second half of the twentieth century. This was the case for criminal procedure, for instance, which during this period was made more efficient in the West.87 However, along with the theoretical repudiation of the bourgeois public/private law distinction, new features were incorporated into civil procedure. Civil proceedings were thus more estranged from the Continental model than were criminal proceedings. New Socialist laws substantially changed the old procedural rules. They reflected the trend towards the Socialist ideals of objective truth. This meant that the purpose of the trial was to find the truth, notwithstanding the claims of both parties or the wish of both parties not to reveal all the details of their dispute. Since they were not bound by what the parties proposed, judges were free to decide for themselves what evidence should be admitted in trial.88 An ideology claiming the actual ability to determine the truth legitimized this sort of legal process in Socialist activist states.89 The contrast with CommonLaw culture is striking, but even the Continental systems are much less categorical in their ideologically very high standards of proof.90 In Poland, a new Civil Procedure Code was enacted in 1964: see Z. Resich, “Systematyka postępowania cywilnego” [System of Civil Procedure], 38 (2) Państwo i Prawo (1983), 26. See, also, the 1969 Polish Criminal Procedure Code (in English): Code of Criminal Procedure of the Polish People’s Republic (Wydawnictwo Prawnicze, Warszawa, M. Abrahamowicz transl. with the cooperation of H. Horbaczewski, 1979). For Czechoslovakia, see the 1963 Code of Civil Procedure (in English): “The Act No.99 of December 4, 1963, the Code of Civil Procedure”, 23 (6) Bulletin of Czechoslovak Law (1984); and the Criminal Procedure Code (in English): Czechoslovakian Law on Criminal Judicial Procedure (US Dept. of Commerce, Office of Technical Services, Joint Publications Research Service, Washington, DC, 1962). 86

Hazard, op.cit. note 43, 113 (highlighting that many alleged differences between the legal cultures of Socialist and Western states were not differences at all but, rather, residua of the Continental heritage within the Socialist legal systems).

87

See, e.g., M. Langer, “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure”, 45 Harv. Int’l L.J. (2004), 1.

88

Art.6 of Hungarian Law III of 1952; §120 para.1 of the 1963 Czechoslovak Civil Procedure Act. On Poland, see Rzepliński, “Principles and Practice of Socialist Justice in Poland”, in: Bender and Falk, op.cit. note 50, 21.

89

M. Damaška, The Faces of Justice and State Authority. A Comparative Approach to the Legal Process (Yale University Press, New Haven, CT, London, 1986), 148; Kucherov, op.cit. note 54, 600ff.

90

Cf. a recent work on the differences in standards of proof between the Common Law and Continental Law, K. M. Clermont and E. Sherwin, “A Comparative Puzzle:

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The Judiciary in Central and Eastern Europe

Therefore, a judge was subject to reproach for uncritically adhering to the conforming assertions of opposing parties: in the view of the Czechoslovak Supreme Court, there was no such thing as unquestioned facts in Socialist civil procedure.91 However, it also meant that the parties were not the masters of the proceeding (a classical principle dominus litis92); rather, the courts were free to adjudicate any issue they considered necessary. The paternalistic activist state simply presumed that “prayers for relief may have to be disregarded, since the plaintiffs do not always know what is best for them”.93 Various means employed in bourgeois society for the simplification of civil procedures, such as the default judgment, were rejected. Thus, for instance, the trial was made less speedy by rejecting the principle that civil proceedings be concentrated (for instance, the old prohibition of invoking new arguments in the latter stages of a proceeding94). Consensus and societal harmony were among the basic ideals of Socialist society. In keeping therewith, not only were courts viewed as the least proper institution to resolve disputes but, also, the judge was supposed—during court proceedings—to emphasize the priority of extrajudicial settlement over judicial decision-making. It was within the judicial Standards of Proof ”, in: James A.R. Nafziger and Symeon C. Symeonides (eds.), Law and Justice in a Multistate World. Essays in Honor of Arthur T. von Mehren (Transnational Publishers, Ardsley, NY, 2002), 629-644 (noting, at 629, that “civilian courts deny or at least de-emphasize the probabilistic nature of proof, while common law courts address it forthrightly”). According to both co-authors, the main reason for this is to be found in the different claims of legitimacy in both systems. Ibid., 642-644. “[C]ivilians appear to have sacrificed a degree of accuracy in order to enhance the apparent legitimacy of their courts.” Ibid., 644. In my opinion, a similar ideological reason appears to justify, among other things, the capability claimed by Socialist courts. 91

See the statement of the Czechoslovak Supreme Court, 23 November 1967, Prz 36/67. Similarly, for case law in divorce matters, see the statement of the Czechoslovak Supreme Court, 30 May 1966, Pls 4/66 (emphasizing that if the courts adhered to the assertions of both parties in divorce proceedings, it would effectively create a divorce based on consensus, which would be against the interests of the society and particularly against the principle of objective truth, as stated in §120 para.1 of the 1963 Czechoslovak Civil Procedure Act.)

92

Damaška, op.cit. note 89, 118, 153: “In well-integrated judicial hierarchies, such as the Soviet, supervision by higher-ups need not be conditioned—as it is in classical Continental systems—upon an appeal by a disaffected party; it can also take place as part of the official duty of higher judicial authorities.”

93

Ibid., 86.

94

Cf. decision of the Czechoslovak Supreme Court of 11 June 1949, No.23/1949, Cz I 1/49, published in: Sbírka rozhodnutí československých soudů [Collection of Decisions of the Czechoslovak Courts] (1949), 33.

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power to delay decision on the merits, allowing the parties the time to settle the case themselves, even if neither of the parties assented thereto. The lawmaker, adhering to the utopian ideas of bringing law closer to laymen, abolished obligatory representation by an attorney95 and obliged judges to instruct ignorant persons about their procedural and substantive rights and duties.96 To some extent, this kind of judiciary was efficient, but it was only possible in the circumstances of social relations and societal life which was itself simplified. As a precondition for this type of judicial proceedings to be successful, however, the caseload needs to be relatively low and most societal disputes need to be resolved via an extra-judicial route. Because these preconditions were satisfied, this system worked reasonably well. For instance, in the 1970s, judicial proceedings in Poland were very efficient: on average, proceedings before a district court lasted 63 days; before a regional court, about 100 days.97 We will see that this has changed dramatically since 1990 (Chapter 4, Part III below). IV.5. The Prosecutor: The Main Guardian of Socialist Legality98 The right of prosecutors to intervene in civil judicial proceedings was another feature of the attempts to achieve just Socialist litigation.99 Prosecutors theoretically held a very important tool allowing them to control civil trials. The rationale for this institution was clearly egalitarian: in order not to repeat the bourgeois experience—where the party with a better 95

See Art.67 para.2 of the Hungarian Law III of 1952 (this new rule contrasted sharply with that which had been part of prewar Hungarian tradition).

96

Miklós Kengyel, “Law of Civil Procedure”, in: Harmathy, op.cit. note 48, 212ff. See Art.3 of the 1952 Hungarian Civil Procedure Code.

97

Wengerek, op.cit. note 65. Wengerek used these figures in support of his claim that extra-judicial proceedings before state arbitration and various other bodies should have been eliminated, as they were not significantly shorter than judicial proceedings, whereas their independence was in doubt. Moreover, state arbitration was not able to establish uniform jurisprudence.

98

Cf. Rzepliński, “Principles and Practice of Socialist Justice in Poland”, in: Bender and Falk, op.cit. note 50, 23-26.

99

See Art.2 of the 1952 Hungarian Civil Procedure Code: “In the interest of the society and the individual workers the procurator can file an action or enter a pending trial in any phase and in the interest of any party to the claim.” For more details on Hungary, see I. Nemeth and J. Szilbereky, “Prokuror v grazhdanskom protsesse” [The Prosecutor in Civil Proceedings], 4 Acta Juridica (1962), 390. For Poland, see J. Jodlowski, “Zasady naczelne socjalistycznego procesu cywilnego” [The Basic Principles of Socialist Civil Procedure], in: Wstęp do systemu prawa procesowego cywilnego [Introduction to the System of Civil Procedure Law] (Ossolineum, Warszawa, 1974), 102ff.

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The Judiciary in Central and Eastern Europe

attorney prevails—the state must achieve control over litigation and aid the weaker party.100 Although this right of intervention might really have assured greater equality between the parties, the side-effect was that the state had influence over any potential dispute, regardless of the wishes of the parties. In fact, in 1988, a prominent Czechoslovak prosecutor acknowledged this very point when he noted that the role of the prosecutor in civil proceedings is “to enforce the policies of the Communist Party of Czechoslovakia”.101 Prosecutors also played a greater role in criminal proceedings, at least in comparison with democratic criminal-law systems. In Socialist countries, they were made the “undisputed master[s]” of the pretrial procedure.102 For instance, it was the prosecutor who decided issues relating to custody, searches of private homes, seizures of property, etc.103 Finally, general supervision over Socialist legality was also entrusted to the procuracy. This meant that the prosecutors received the petitions of individuals who alleged that their rights had been breached by actions of administrative bodies of the Socialist states. The prosecutor was free to challenge any such action. Further, prosecutors had the power to supervise the observance of Socialist legality on their own initiative.104 In the very beginning, when a substantial proportion of judges were not Communist Party members, almost all prosecutors were already members of the Party.105 In more liberal Poland in the 1980s, the percentage of prosecutors who were Communists was almost twice as high as the percentage of judges who were Communists.106 The fact that it was the prosecutors, not the judges, who held the key posts in administration of justice, was shown also by the purges 100

F. Boura, “Prokurátor v civilním řízení” [The Prosecutor in Civil Proceedings], 90 Právník (1951), 97.

101

I. Krutský, “Úvahy nad postavením prokurátora a významem jeho účasti v civilním procesu jako záruky zákonnosti” [Thoughts about the Status of the Prosecutor and the Meaning of his Participation in Civil Proceedings as a Guarantee of Legality], 127 Právník (1988), 310, at 311.

102

Damaška, op.cit. note 89, 195.

103

See Czechoslovak Laws on the Procuracy (Sb. (1956) No.65 and Sb. (1965) No.60).

104

J. Reitz, “Progress in Building Institutions for the Rule of Law in Russia and Poland”, in: Grey, op.cit. note 27, 152ff.

105

For instance, in East Germany in 1950, 54% of the judges and 87% of the prosecutors were Communist Party members. Cf. S. Schröder, “Die Juristenausbildung in der DDR”, in: Bender and Falk, op.cit. note 4, 447.

106

70% of the prosecutors as opposed to 43% of the judges. See Rzepliński, “Principles and Practice of Socialist Justice in Poland”, in: Bender and Falk, op.cit. note 50, 2026.

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that eliminated prewar prosecutors in the early 1950s Czechoslovakia. A general liquidation of this sort was not directed against the judicial ranks.107 “Within the New Class, we the judges were clearly outranked by the prosecutors; their social background was purer, their politicization profounder, and their salaries higher.”108

V. Law and Everyday Life Following Weber’s typology of legitimacy, the declining Communist dictatorships in Central Europe moved from the Stalinist charismatic conception of authority to that of authority based on rational argumentation, i.e., a more technical and formalistic approach. As Václav Havel has remarked at the end of the 1970s: “In a classical dictatorship, to a far greater extent than in the post-totalitarian system, the will of the ruler is carried out directly, in an unregulated fashion. A dictatorship has no reason to hide its foundations, nor to conceal the real workings of power, and therefore it need not encumber itself to any great extent with a legal code. The post-totalitarian system, on the other hand, is utterly obsessed with the need to bind everything in a single order: life in such a state is thoroughly permeated by a dense network of regulations, proclamations, directives, norms, orders and rules [...].”109

Under late Socialism, while form was of utmost importance for the legal system, in practice, this mattered little. The Socialist system had closed the society and simplified what had—in Central Europe—once been a rich and intense social life. The omnipresent ruling ideology penetrated the whole of society. In the 1970s, one Hungarian scholar, Imre Szabó, claimed that: “Socialist law should be characterized by, if anything, a certain simplicity because of the increasing simplification of the social conditions it regulates.”110 At the same time, ideology had reduced the role of law—and, particularly, the role of lawyers—since the real regulatory force in the society was different from traditional law as conceived in Western thought. The Socialist system made some societal relations much simpler (e.g., the absence of complicated commercial rules, bankruptcy rules, vulgarization 107

Ulč, op.cit. note 7, 90.

108

Ibid., 91. Similarly, I. Markovits, “Children of a Lesser God: GDR Lawyers in PostSocialist Germany”, 94 Mich.L.Rev. (1996), 2270, at 2281, noting that “if, essentially, judges and prosecutors were equals, the prosecutor was the more equal of the two”.

109

Havel, op.cit. note 38,72.

110

I. Szabó, “The Socialist Conception of Law”, in: K. Zweigert and U. Drobnig (eds.), International Encyclopedia of Comparative Law, Vol.II, The Legal Systems of the World. Their Comparison and Unification, Chapter 1, “The Different Conceptions of the Law” (Mouton, The Hague, J.C.B. Mohr, Tübingen, 1975), 49, 66.

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The Judiciary in Central and Eastern Europe

of the domestic legal tradition). The simple Socialist climate, thus, also made law relatively uncomplicated, discouraged lawyers from independent thinking, and made more likely their blind obedience to the letter of law. As I will show below, there was no need to think critically about the law, the problems of its interpretation, the function of the judge, etc. Inga Markovits has remarked: “Law needs self-determination, egotism, conflict, competition, choice, bargaining, and the universal usefulness of money if it is to flourish. No wonder that it never could gain real power under Socialism.”111

An important fact contributing to the lack of litigation in Socialist era was that many real and financially interesting transactions were occurring in a sphere where one could hardly call in lawyers. A number of the real transactions were going on in the gray zone of unlawful but, in fact tolerated, dealings, for example de iure criminal trading with foreign currency. These bargains were done with the tacit approval of the otherwise omnipresent state, as it was one of the few effective ways for the declining economy to obtain a strong Western currency.112 To Western observers, Socialist citizens seemed to be ‘bilingual’ and “to know exactly which language to use and when”.113 “[T]otalitarian law forced people to behave outside the law”, a Polish scholar has observed. This seriously has hampered the proper implementation of the rule of law in post-Communist countries.114 The role of law in daily life impressively differed from its role in Western European countries. Socialist law seemed “curiously weightless, almost unreal”.115 A typical layman in trouble would not go to court; he had the option to file a petition with the Party (for instance, the wife of an adulterous Party functionary might complain and the Party had the

111

Markovits, op.cit. note 53, 870. Cf. an earlier (1986) article by the same author describing the late Communist era: op.cit. note 73, 744ff. For instance, the operation of Socialist rental housing was a losing business, considering the artificially low level of rents under Socialism. Cf. I.S. Markovits, “Law or Order – Constitutionalism and Legality in Eastern Europe”, 34 Stanford L. Rev. (1981-1982), 513, 578.

112

Cf. for many colorful examples: Markovits, op.cit. note 111, “Law or Order”, 597-600, discussing the ‘second economy’ of Socialist regimes.

113

Ibid., 600.

114

A. Fijalkowski, “The Judiciary’s Struggle towards the Rule of Law in Poland”, in: J. Přibáň and J. Young (eds.), The Rule of Law in Central Europe (Ashgate Publishing, Dartmouth, UK, 1999), 242ff., at 244. Cf. Markovits, op.cit. note 111, “Law or Order”, 580: “East German rent law has not produced order but rather a state of anarchy, in which people have come to rely on law evasion and self-help, rather than on contractual agreement or litigation.” (footnotes omitted)

115

Markovits, op.cit. note 73, 754.

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power to force him to terminate the relationship116), to the street committee if her neighbor disturbed the house during the night,117 to the ‘Socialist Ombudsman’ (the prosecutor), etc. Courts were the last resort; thus, a rather improbable choice. The number of civil actions brought to the courts in Central Europe declined dramatically during the Socialist era.118 In contrast, criminal adjudication flourished during the Socialist era, which coincided with the widelyheld belief that criminal law was an effective instrument in fashioning a new ‘Socialist’ person. Shortly after the Communists seized power, this notion lead to the introduction of some specific Socialist crimes, such as parasitism, and resulted in much higher crime rates than during the pre-Socialist era. Table 1 Year 1898 1913 1927 1967 1975 1980 1984 1988

The Number of New Civil Cases The Number of New Criminal Cases before District Courts in Czech Lands 183,246 16,403 226,163 19,047 238,924 41,117119 82,332 47,211 114,610 80,259 138,894 66,804 194,177 86,032 187,600 68,455120

From the data in Table 1, one can observe an increase in civil litigation towards the end of the Socialist regimes. However, these trends are rather moderate if one compares them with the reality in Western Europe. The 116

For a colorful description by an eyewitness, see the works of Milan Kundera, especially: The Joke (MacDonald, London, David Hamblyn and Oliver Stallybrass transl. 1969), 150.

117

Cf. Kundera’s Laughable Loves (Alfred A. Knopf, Inc., New York, NY, Suzanne Rappaport transl., Philip Roth intro. 1974) (the story: “Nobody Will Laugh”).

118

For Hungary, see Kulcsár, op.cit. note 60, 123.

119

See K. Krcha, “Soudnictví před deseti lety a dnes” [The Judiciary Ten Years Ago and Now], 67 Právník (1928), 596.

120

See the statistics of the Ministry of Justice of the Czech Republic, available at . Although data from 1945 to 1967 are not accessible, the drastic decline after World War II must also be viewed against the background of the population losses occurring during the war and in its aftermath. While the territory has remained the same, the data do not reflect population changes.

48

The Judiciary in Central and Eastern Europe

general Western European trend, for better or worse, has been toward a conflictual or litigious society.121 Citizens have become more educated, thus more aware of their rights; the increase in the number of lawyers in the last several decades may also have played a role. Western European society is becoming more ‘Americanized’. Even in the traditionally nonconflictual Dutch society, for example, during a thirteen-year period (1970-1983), the number of new civil cases filed doubled from 70,000 to 140,000 per year.122 Perhaps the most reliable comparison would be to look at both parts of the then divided Germany in the 1980s. West German courts handled a caseload nine times as large as that of East German courts (if we adjust the data for the number of inhabitants). West German employees were more than seven times as likely to bring suit against their employer as their Socialist counterparts. West Germans used legal representation before the courts while East Germans basically brought suit on their own, relying on the paternal advice of the Socialist judge. The only exception—where East German citizen were more likely to go to the court than their Western counterparts—was in the area of family law.123 The official side of life under Socialism was quite simple; therefore, the types of cases which a typical judge would have to decide were also rather simple. Complex issues of administrative, constitutional or commercial law left the court rooms to be decided by different bodies or, simply, did not exist in the Socialist state.124 The supreme courts often decided trivial matters, which had, however, importance for the participants of the economy of shortage.125 In Hungary in the early 1980s, for instance, 54% 121

A.A.S. Zuckerman, “Justice in Crisis: Comparative Dimensions of Civil Procedure”, in: A.A.S. Zuckerman (ed.), Civil Justice in Crisis. Comparative Perspectives of Civil Procedure (Oxford University Press, Oxford, 1999), 3-52, at 42ff.

122

P.A.J.Th. van Teeffelen, “Causes and Origins of the Current Problems of Overloading in The Netherlands”, in: W. Wedekind (ed.), Justice and Efficiency. The Eighth World Conference on Procedural Law (Deventer, The Netherlands, Kluwer Law and Taxation Publishers, 1987), 4ff. The number of applications for interlocutory injunctions more than doubled in just over a decade—from 32,000 applications in 1970 to 74,000 applications in 1982.

123

Markovits, op.cit. note 73, 719ff.; id., “Hedgehogs or Foxes?: A Review of Westen’s and Schleider’s Zivilrecht im Systemvergleich”, 34 Am.J.Comp.L (1986), 113, 133ff..

124

Cf. Markovits, op.cit. note 53, 852.

125

Decisions of the Supreme Court of the Czech Socialist Republic of 12 July 1971, No.29/1972, sign. 6 Tz 21/71, Zbierka súdnych rozhodnutí a stanovísk (1972) (criminal part), 315ff., dealing with the question of whether six shirts might be forfeited to the state in criminal proceedings; and of 8 November 1971, No.36/1972, sign. 3 Tz 87/71, Zbierka súdnych rozhodnutí a stanovísk (1972) (criminal part), 341ff., dealing with the case of a man who had taken a wheel from his brother’s motorcycle in order to use it unlawfully for a time.

Chapter 2: Socialist Legal Culture in Central Europe

49

of the total number of the first-instance civil suits in district courts were family related issues (marriage, paternity, matrimonial property, spouse’s maintenance, etc.).126 Similarly, 51% of the caseload handled by East German judges related to family issues, while similar cases accounted for a mere 13.7% of the caseload of their West German counterparts.127 Considering these facts, no one should be surprised by the low numbers of lawyers and law students, as will be discussed below.128 In fact, the officially imposed low quota on legal education in the 1980s Czechoslovakia was also due the fact that the authorities in this centralized society faced increasing troubles to employ even the existing moderate numbers of lawyers.129 A society of simplified or extra-legal social relations simply did not need lawyers. Surprisingly, such data are quite similar in all four Central European countries—despite the fact that Czechoslovakia and Eastern Germany were countries with a rigid Socialist economic system while, to a certain degree, a legally autonomous private sector (with a wealthier social and economic life) developed in Poland and Hungary.130 The fact that these data do not track this major difference is also a reflection of the role of law in Socialist society.

VI. Law Students during Socialism In Socialist societies, lawyers were not particularly needed as we have remarked above. In consequence, the number of the law students in Socialist Central Europe was also quite low. In Czechoslovakia before World War II, for instance, about two thousand students entered the Prague law faculty each year—although far fewer actually succeeded in graduating. Between 1926 and 1938, on the average, 726 students graduated annually from the two law faculties in the Czech lands alone.131 Access to law study was open and subject only to the completion of high school by passing the final ‘maturity’ exam. By way of contrast, during Socialism, access to law faculties was restricted, making it very difficult to enter. While the number 126

K. Kulcsár, “Social Aspects of Litigation in Civil Courts”, in: M. Cain and K. Kulcsár, Disputes and the Law (Akadémiai Kiadó, Budapest, 1983), 85ff., at 89-90.

127

Markovits, op.cit. note 73, 720.

128

See Chapter 5 infra.

129

On this Beňa, op.cit. note 6, 404.

130

On the Hungarian Socialist reforms, see A. Harmathy, “Changes in Civil Law in Hungary”, 20 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1978), 409-428.

131

L. Hlavatý, “Kolik je právníků v ČSR” [How Many Lawyers Are There in the Czechoslovak Republic], 86 Právník (1947), 188-189.

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The Judiciary in Central and Eastern Europe

of graduates in medicine or technical schools had increased several times, the number of law graduates was lower than in pre-war times. In the early 1950s, at the peak of Stalinism, the number of graduates had been reduced to less than 200 at the two remaining law faculties throughout the whole of Czechoslovakia.132 In the 1950s and 1960s, about three-fourths of the Czechoslovak student body was composed of ‘distance learning’ students, i.e., part-time students who studied while working in the civil service, police force, etc.133 Future prosecutors and judges often went through this kind of study program. The quality of this type of education was poor, even in the view of moderate Socialist scholars.134 Although the total number of law students in Czechoslovakia began to increase in the 1960s and reached about 1,500 graduates in the 1980s, almost one-half of those graduates were still part-time students.135 Therefore, at the end of the Communist era, the annual output of ‘normal’ law graduates in Czechoslovakia was effectively lower than it had been fifty years previously. Similarly in Hungary, the percentage of law graduates among all university graduates decreased fivefold. While the absolute number of lawyers in the late Communism remained approximately the same as before the war, the number of university graduates in technical fields increased sixfold, in the agrarian field more than fourfold, in economic and education nearly fivefold, and in the medical field twofold.136 This means that, until the late 1980s, the legal profession was aging.137 132

Ulč, op.cit. note 7, 35.

133

Distance learning has always been typical for legal education in Central Europe, including at Austrian law faculties. However, the Communist model for part-time study was not of this type. While the former was associated with a high drop-out rate (only about one student in ten who were enrolled in such courses finished their law studies, cf. Beňa, op.cit. note 6, 383 (at note 4)), during the Socialist era, part-time students were expected to successfully complete their studies, most of them having important state functions, e.g., in the security forces.

134

Kulcsár, op.cit. note 4, 311.

135

This was so despite the fact that the law faculty in Brno was reopened in 1969 and a new law faculty was established in Košice in 1973. See Beňa, op.cit. note 6, 375ff.

136

Kulcsár, op.cit. note 4, 308. In less detail, see András Sajó, “The Role of Lawyers in Social Change: Hungary”, 25 Case W. Res. J. Int’l L. (1993), 137, 141ff.

137

Graduates of universities and law faculties in Hungary:

1930 1941 1949 1960 1970 1980

People of university education = 100%

Number of those having an education of legal character and their percentage

86,885 91,679 96,561 169,645 300,558 484,846

27,068 30,978 25,769 26,555 29,272 31,463

Kulcsár, op.cit. note 4, 308. Cf. similar numbers in Markovits, op.cit. note 111, 540.

31% 33.8% 26.7% 15.7% 9.7% 6.5%

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In East Germany, while there was a total of 3,373 law students in 1981 (only 300 hundred more students than those enrolled in the arts), the number of students who were enrolled in technical sciences was almost twelve times larger, in medicine nearly four times greater, in agriculture almost three times greater, and in philosophy, history and political science—respectively 1.6 times greater.138 While in East Germany in the 1980s there were only forty lawyers per 100,000 inhabitants, in West Germany the figure was more than twice that number (85).139 In fact, the number of lawyers in Western Europe—which had been relatively stable before the 1970s—has increased rapidly since the 1970s, accompanied by a substantial increase in litigation. In The Netherlands again for example—where the numbers of lawyers was traditionally low and litigation was relatively infrequent140—the number of lawyers doubled between 1970 (when there were sixteen lawyers per 100,000 inhabitants) and 1984 (when there were thirty-three per 100,000 inhabitants).141 Although most law students in the Socialist states (and, I would argue also, in non-Socialist Central European countries) did not intend to pursue a judicial career, many other law-related positions were gradually becoming more attractive. Accordingly, the demand to study law increased during the final decades of the Communist era. Still, the numbers of students who were admitted to law faculties remained quite low. Because the number of persons interested in legal education was higher than the number of available positions, family connections to the nomenklatura were often the decisive factor in admission to law faculties, as the entrance procedure was essentially arbitrary. Moreover, in all Communist countries, this

138

D.J. Meador, Impressions of Law in East Germany. Legal Education and Legal Systems in the German Democratic Republic (University Press of Virginia, Charlottesville, VA, 1986), 113ff.

139

Ibid., 174.

140

Therefore, considering the peculiarities of the Dutch legal culture, it would not be wise to compare the percentages in Central Europe and The Netherlands. Cf. J.R.A. Verwoerd, “The Last Resort”, in: Wedekind, op.cit. note 122, 21ff. passim, 39. In The Netherlands, the courts function more as the ‘last resort’: “Although relatively much of public spending goes into that mediating infrastructure, the money does not seem to be wasted. On the contrary, looking at the relatively light case-loads of Dutch courts, the money spent is probably regained further along the line. Moreover, with respect to many types of legal problems, first-hand legal assistance is surely more consumer-friendly than anything formal court proceedings could ever offer.” E.H. Hondius, “Informal Alternatives to Formal Judicial Procedure: The Netherlands”, in: Wedekind, op.cit. note 122, 119ff.; Zuckerman, op.cit. note 121, 33-35; and E. Blankenburg, “Civil Justice: Access, Cost and Expedition. The Netherlands”, in: Zukerman, op.cit. note 121, 442-463.

141

Verwoerd, op.cit. note 140, 31.

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The Judiciary in Central and Eastern Europe

deplorable situation was compounded by the corruption of the staff of law faculties.142

VII. The Legal and Social Status of Lawyers and of Judges in Particular As the role of law in Socialist society drastically changed, the general image of the lawyers in Socialism followed suit. Perhaps the most significant transformation occurred in Hungary. While pre-war Hungary proudly called itself ‘a nation of lawyers’,143 this title acquired a predominantly negative connotation after 1948. We cannot avoid noting a certain paradox here. On the one hand, Socialist society in the Soviet-type regimes was highly centralized, based on Socialist planning and total regulation. The notion of law’s importance, its inherently instrumental nature and legislative optimism (a profound belief in the possibility to change the society through law) continued to be shared throughout the region;144 in a sense, these were even highlighted by the emphasis on centralism.145 On the other hand, the prestige of lawyers dropped considerably, as did their salaries in comparison with many other professions throughout the region.146 “It is a rather peculiar contradiction”, as the reformer Kálmán Kulcsár (the last Hungarian Minister of Justice of the Communist era) had observed in the late 1980s: 142

For Poland, cf. Z. Gostynski and A. Garfield, “Taking the Other Road: Polish Legal Education During the Past Thirty Years”, 7 Temple Intl. & Comp.L.J. (1993), 243, 256257. These problems persist in many post-Communist countries, as was shown by the corruption affair that erupted in 1999 (information had come to light that entrance exams could be purchased in advance) at the oldest law faculty in the region: the Charles University Law Faculty in Prague. See A. Tucker, “Reproducing Incompetence: The Constitution of Czech Higher Education”, East European Constitutional Review (Summer 2000) No.3, 94-99.

143

I. Szabó, Political and Legal Sciences (Corvina Press, Budapest, 1965), 3. Cf. also L. Boroa, Á. Gyulavári, and Z. Fleck, “Juristenausbildung und Rechtserziehung in Ungarn von 1945 bis 1990”, in: Bender and Falk, op.cit. note 4 (noting that before World War II Hungary had been called ‘Land der Juristen’ i.e., ‘a country of jurists’).

144

K. Kulcsár, Modernization and Law (Theses and Thoughts) (Institute of Sociology, Hungarian Academy of Sciences, Budapest, 1987), 125.

145

“During the socialist era, illusions controlled the way of thinking in socialist countries, resulting in a false reliance upon legislation or law. The illusion of the French revolution was that the formulation of some general declaratory rules would be sufficient. In a similar way, after World War II, it was supposed that the central power could solve almost any problem in a short time.” A. Harmathy, “Codification in a Period of Transition?”, U.C. Davis Law Review (1998), 783, 785.

146

C. Kabódi, “La juridiction est-elle une prestation?”, 28 (1-2) Acta Juridica Academiae Scientiarum Hungaricae (1986), 149-162; and Kulcsár, op.cit. note 4, 313.

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“that when, on the one hand, the role of law-making has increased by the strengthening of the central leadership of the society, the professional knowledge of the lawyers was evaluated as almost negligible, on the other hand.”147

The reasons for this apparent paradox are evident, however. Socialist ideology—based, in its very roots, on utopian presumptions of the diminishing role of law—considered lawyers as a less important profession.148 Law was seen as “a flexible instrument of social engineering”,149 not as a set of complex rules the use of which required highly educated professionals. It was not for lawyers to deal with law. Further, many matters were not regulated by law (at least, if one conceives of law as a set of general and promulgated rules) but, rather, by means of state planning and of directives from the Central Committee of the Communist Party.150 The profession of judge was no longer attractive even for legal professionals themselves.151 A 1986 public poll in Poland revealed the fact that only 8% of respondents would have liked their child to become a judge.152 Judicial posts were underpaid, and the issue of salaries seemed to be one of the most painful problems felt by judges themselves.153 In late 1950s in Czechoslovakia, the salary of judges was only slightly above the national average. Professions such as that of a miner or bus driver received higher pay.154 In East Germany, the average pay of a district court judge was equal to the average national income of a laborer or a farmer.155 Such a situation invites corruption, which became a necessary companion to every day life in Socialist societies. Moreover, poorly paid judges—who had low morale and lacked self-respect—felt too weak to resist when confronted with the demands of ‘telephone justice’.156 147

Cf. Kulcsár, op.cit. note 4, 303.

148

This was evident from the Czechoslovak propaganda slogan of the early 1950s: “I am a miner, who is more important? I am a lawyer, who is less?” E. Stein, CzechoSlovakia, Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (The University of Michigan Press, Ann Arbor, MI, 1997), 191.

149

Hazard, op.cit. note 43, 69.

150

Kulcsár, op.cit. note 4, 313; and Schmidt, op.cit. note 78.

151

Kabódi, op.cit. note 146.

152

S. Podemski, “Brutalnie, lecz szczerze” [Brutally but Honestly], Polityka (27 Sept. 1986), quoted according to: S. Frankowski, “The Independence of the Judiciary in Poland: Reflections on Andrzej Rzepliński’s Sądownictwo w Polsce Ludowej (The Judiciary in People’s Poland) (1989)”, 8 Ariz.J.Int’l & Comp.L. (1991), 33, 47.

153

Bajcura, op.cit. note 62.

154

Ulč, op.cit. note 7, 57.

155

Meador, op.cit. note 138, 139.

156

Rzepliński, op.cit. note 17, 64ff.

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The Judiciary in Central and Eastern Europe

While the prestige of the judicial profession declined, the judicial career began to be feminized. By 1980 in Hungary, women comprised 41.8% of the entire judicial corps and accounted for 60.2% of the district court judges.157 In East Germany in the early 1980s, around one-half of all judges were women, with an even higher proportion at the district courts.158 In Poland in 1986 55.3% of the judges were female, but 61.5% at the district court level.159 In Czechoslovakia, the numbers were similar.160 On the one hand, this phenomenon reflected a certain accomplishment of the Socialist regime in promoting gender equality and emancipating women. On the other hand, the feminization of the judiciary was also due to the fact that this profession had lost its prestige during the era of Socialism. The decision-making activity of the lower courts, after all, focused primarily on family law issues, which some might consider to be issues that are primarily feminine in nature.161 The feminization of the judiciary might also explain the astonishingly low salaries of judges. The low status of the judiciary was also caused by the ideological perception of the judicial profession. Although, in contrast to the Soviet Union, a judge needed to have a legal education in Socialist Central Europe,162 ideologically the Socialist conception of the judge was that of an unthinking, mechanical machine—hiding among provisions of numerous regulations and directives.163 In a sense, this was a return towards the very roots of the French revolutionary tradition of the late eighteenth and early nineteenth centuries,164 a positivist tradition which (in its purest form) had never found its home in Central Europe prior to 1950. 157

Kulcsár, op.cit. note 4, 316.

158

G. Shaw, “Women Lawyers in the New Federal States of Germany: From Quantity to Quality?”, in: U. Schultz and G. Shaw (eds.), Women in the World’s Legal Professions (Hart Publishing, Oxford, 2003), 323, 327 (in 1970, 36.7% of the judges at the trialcourt level were female; in 1989 52.3%).

159

Rzepliński, op.cit. note 17, 84 (at note 133). For more detail, see M. Fuszara, “Women Lawyers in Poland under the Impact of Post-1989 Transformation”, in: Schultz and Shaw, op.cit. note 158, 375 (in 1968, 33.2% of the total number of judges were women; in 1970 36.5%; in 1975 42.4%; in 1980 49.3%; in 1985 52.9%; and in 1990 already 61.6%).

160

In the Soviet Union itself, however, less than one-half of the Soviet judges were female; according to data from 1987, women made up approximately 40% of the judiciary. See V.I. Terebilov, Zakonnost’ i pravosudie v SSSR [Legality and the Judiciary in the USSR] (Politizdat, Moskva, 1987), 47.

161

Cf. footnotes 126-127 and the accompanying text.

162

D.S. Clark, “The Relative Importance of Judiciaries in Distinct Legal Traditions”, in: Nafziger and Symeonides, op.cit. note 90, 623.

163

This is the basic message of Kulcsár’s 1987 article, op.cit. note 4, 303-319.

164

J.H. Merryman, “The French Deviation”, 44 Am. J. Comp. L. (1996), 109.

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55

A society without litigation needed neither attorneys nor judges. The number of attorneys was regulated. In Hungary in 1980, there were only 1,714 practicing attorneys, which represented only 8.8% of all law graduates, while there were 1,522 judges (7.9% of all law graduates). In the 1980s, adjusting for the different number of inhabitants of East and West Germany, West Germany had 3.4 times as many professional judges as did East Germany, more than six times as many as law students, and almost twenty times as many private attorneys.165 In 1985 in Hungary, each judge served a much higher number of citizens than had been the case a hundred years earlier,166 while the number of inhabitants served by each West German judge had—over the same time period—decreased almost twofold.167 In the Czech lands in 1913, the number of imperial judges was as high as 1,278, while seventy years later the number of judges was similar (1,328). Table 2: The Number of Judges in Central Europe in the 1970s and 1980s Year

Judges

Population

Judges /

100,000 inhabitants Czechoslovak Socialist Republic

1980

1,328

10,300,000

12.9168

Germany (East)

1981

1,297

16,700,000

7.7169

Germany (West)

1965

12,239

59,000,000

20.7170

Germany (West)

1985

17,031

61,000,000

28171

Poland

1981

3,096

36,100,000

8.5172

165

Markovits, op.cit. note 73, 719ff.

166

Sajo, op.cit. note 136, 139. In 1901 in Hungary, there were 6,550 inhabitants per judge; in 1935 5,170 inhabitants. In contrast, fifty years later, there was one judge per 7,066 inhabitants; see ibid., 139.

167

In 1901 in Germany, there were 6,477 inhabitants per judge, while in 1985 there were 3,585 inhabitants per judge. Ibid.

168

Population according to data available at , the number of judges (provided by Ministry of Justice of the Czech Republic).

169

Meador, op.cit. note 138, 138; my calculation of the number of judges per 100,000 inhabitants.

170

K.F. Röhl, “Gründe und Ursprünge aktueller Geschäftsüberlastung der Gerichte aus soziologischer Sicht”, in: P. Gilles (ed.), Effiziente Rechtsverfolgung/Efficiency in the Pursuit of Justice, Deutsche Landesberichte zur VIII. Weltkonferenz für Prozeßrecht in Utrecht 1987, German National Repors for the VIII. World Conference on Procedural Law in Utrecht 1987 (C.F. Müller, Heidelberg, 1987), 35; my calculation.

171

The number of judges in 1985, ibid., 35. Population of Germany based on information from the German Statistics Office; my calculation of the number of judges per 100,000 inhabitants.

172

Rzepliński, op.cit. note 17, 107. Population according to data from the Polish Statistics Agency available at ; my calculation of the number of judges per 100,000 inhabitants.

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The Judiciary in Central and Eastern Europe

Table 3: Ratio of State Attorneys to Private Attorneys Germany (West) (1977)

1:9.6173

Netherlands (1977)

1:15.5

Poland (1978)

1:1.9

USSR (1975)

1:1.7

Another factor which must be mentioned is the party affiliation of judges. As they exercised a state function in an activist one-party state, membership of judges in Socialist Central Europe in the Communist Party was welcome, although unlike the Soviet Union not necessary. However, it was a necessary pre-condition of their career promotion. While in the Soviet Union before the 1990s, over 90% of judges were party members,174 in the 1980s Czech Socialist Republic Communists made up around 60% of the judicial corps: in January 1989, there were 795 Communists out of total 1418 judges.175 Similarly, in Poland, about one-half of all judges were Communists.176 It should be noted that the percentage of Party-affiliated judges at the high courts was much higher than at the lower levels. For instance, in 1987, 53.7% of all Polish judges were Party members, but at higher courts that figure was 67.6%. With few exceptions, all Supreme Court justices were Party members.177 On the other hand, by 1981, out of 3,096 Polish judges, 867—i.e., almost one-third of the Polish judiciary (28%)—had joined the Polish opposition force, the Solidarity trade unions.178 This happened despite the fact that the Polish judiciary had been subjugated for more than three decades.

173

Data according to Markovits, op.cit. note 111, 537 (at note 112).

174

I.L. Petruchin (ed.), Sudebnaia vlast’ [Judicial Power] (TK Vebli, Prospekt, Moskva, 2003), 4.

175

Data provided by Czech Ministry of Justice, April 2005.

176

Rzepliński, op.cit. note 17, 85ff.

177

Ibid.

178

Ibid., 107.

Chapter 2: Socialist Legal Culture in Central Europe

57

Table 4: Poland and the Political Membership of Judges Members of the Polish Communist Party (%)179

Year 1953

28.8

1958

30.0

1961

37.2

1962

40.2

1963

56.3

1965

57.7

1966

58.2

1969

52.8

1971

45.6

1984

53.7

1987

48.2

VIII. Assessing Judicial Independence After the end of the most severe era of Stalinism, it was generally accepted that the extreme injustices of the early 1950s were not to be repeated. However, reforms and the strengthening of the judiciary’s position were limited by the Communist Party’s might, its alleged omniscience and its willingness to control all aspects of state activity. It is true that, indeed, the extreme wrongs of the 1950s were not repeated in Central Europe and that the independence of the judiciary was promised and recognized as a basic value in all Socialist constitutions.180 Yet, despite of all these assurances, it was impossible to assure a fully independent judiciary; this was due, in essence, to the fact that the Socialist state made a total claim to lead and form society. The Party had, by its very nature, pretensions to omnipresence and omniscience.181 During the 1968 Prague Spring, radical reform in this picture was proposed. The government’s commission of inquiry into the political trials of the 1950s investigated the injustices of Stalinism and the failure of the Socialist judiciary, and called for “firmly establishing the independence 179

Ibid., 85ff.

180

Cf. J. Macur, “Některé aspekty soudcovské nezávislosti” [Some Aspects of Judicial Independence], 127 Právník (1988), 197. Macur claimed that, in comparison with the situation in bourgeois states, a Socialist society “strengthens and develops the principle of judicial independence”. But this assertion was self-evidently vague and absurd, considering that he wrote that this principle was established fully in the Soviet Union by the USSR Constitution of 1936 (!), that is in the era of the most repressive Stalin’s terror.

181

Zweigert and Kötz, op.cit. note 64, 326; and, similarly, K. Zweigert and H. Kötz, An Introduction to Comparative Law (Oxford University Press, Oxford, 2nd ed., T. Weir transl. 1992), 303.

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of the courts” and renewing administrative and constitutional courts.182 Naturally this initiative was dropped after the Soviet invasion, and the reform proposal was never realized during Czechoslovakia’s Communist era. During the Prague Spring in 1968, one Czechoslovak judge openly stated he felt his dependence on the public authorities anytime that he decided a politically ‘hot’ issue, especially cases concerning local party and state functionaries: “The most painful failure […] in the work of judges was the encroachment upon their decision-making and the failure to respect their judicial independence. The work of judiciary was dependent on individual political situations and was guided according to it. The political slogan that the judges’ work covers both their decision making and the work with their electors was very harmful.”183

The last sentence in this quote refers to another peculiarity of the Communist conception of the judiciary, especially in its early period. In the early Socialist times, a judge was expected to be activist not only in her judgments but, also, in her overall life through active participation in discussions with citizens and in voluntary social work in building Socialism. In later decades, however, this practice was abandoned; what remained were rather moderate political discussions between judges and citizens who were, ultimately, the judges’ ‘electorate’.184 Some data published during the era of Prague Spring are quite interesting. For instance, an opinion poll taken in 1968 among Czechoslovak judges185 revealed an overwhelming majority of judges did not feel that their independence was sufficiently guaranteed. The main problem was a circumstance found throughout Communist Europe: judges’ dependence on the bodies which elected and reelected them (and, thus, had the power to recall them). In a worldwide comparison, leaving aside the specific conditions for selection of the Continental constitutional justices, we might see two basic models of the selection of judges.186 The professional model has been developed in some Continental countries in Western Europe, mainly France and Germany. In these countries, judges are chosen for judicial office at the very beginning of their professional career, appointed by the ministry of justice shortly after graduation from a law faculty. The judicial 182

Pelikán, op.cit. note 3, 281.

183

Bajcura, op.cit. note 62, 839.

184

See for a similar development in East Germany, Markovits, op.cit. note 53, 842.

185

Bajcura, op.cit. note 62.

186

Reitz, op.cit. note 107, 146ff. On this point generally, see D.S. Clark, “The Organization of Lawyers and Judges”, in: Zweigert and Drobnig op.cit. note 64, chapter 3, 164-186 (2002).

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selection is rather technical: testing future judges’ skills at handling a trial and evaluating their law faculty records.187 In contrast, under the political model, political criteria are emphasized; there is a general preference for selecting judicial candidates whose future decision-making can be more reliably predicted. Judges are appointed (or elected) at a later stage in their careers, after considerable previous professional experience, which makes their later decision-making more predictable. In some cases, they are not guaranteed life tenure. The United States is the most typical example of this model,188 although it also exists in Europe. In Switzerland and The Netherlands189—both sharing Germanic legal roots—the practice of judicial recruitment has placed some emphasis on mobility from non-judicial posts, and applicants in their twenties are often rejected. In Communist systems, the practice of judicial recruitment developed a specific hybrid of both paradigmatic models which, in its effects, was rather close to the West German professional model. A cursory study of this selection process suggests that, in fact, under Socialism it moved much closer to the American model.190 However, such a conclusion is based on a deceptive image of the Socialist judicial selection process, a conclusion which could be accepted if we take seriously the Socialist description of this process. In fact, in its substance and result, this process was one which in practice more resembled the West German professional model.191 Like the American political model, the Socialist states emphasized the political aspect of the judgeship through the mode of elections, either by popular vote (trial judges) or selection by political bodies. But, save the specifics of the early Stalinist era, the actual practice more closely followed the professional model: a typical judge was conceived of as a career judge; following graduation from a law faculty, she worked her way up the ladder of the various instances of Socialist courts.

187

E. Blankenburg, “Patterns of Legal Culture: The Netherlands Compared to Neighboring Germany”, 46 Am. J. Comp. L. (1998), 1, 7ff.

188

H.J. Abraham, The Judicial Process. An Introductory Analysis of the Courts of the United States, England, and France (Oxford University Press, New York, NY, Oxford, 7th ed. 1998), 20ff.

189

Blankenburg, op.cit. note 187, 7. Cf. P.A.J.Th. van Teeffelen, op.cit. note 122, 8-9 (noting that Dutch judges are recruited from both recent graduates and experienced practitioners).

190

This view is held by Reitz, op.cit. note 186, 146ff.

191

Cf. Meador, op.cit. note 138, 133ff.

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In Czechoslovakia, for instance, the law192 provided that judges (including lay assessors) were elected for a term of four years.193 Theoretically, judges at district courts were elected by an electorate composed of the inhabitants in their district. In practice, as was the hard-and-fast rule behind the Iron Curtain, the voter had no choice but to vote for a candidate selected for her by the political bodies.194 Judges—at the regional courts of appeal—were elected by the regional national councils, purely political bodies inspired by the soviets in the Soviet Union. Finally, the judges of the Supreme Court were elected by Parliament based on the proposal of the National Front, the organization uniting several legal political parties in Czechoslovakia—in fact, a cell of the Communist Party.195 The body which elected judges had also the power to recall them. Originally, the grounds justifying recall were formulated in an extremely vague fashion, e.g., serious breach of judicial duty or the loss of confidence in them by the workers. One of a few remnants of the 1968 Czechoslovak reform movement that survived was a provision abolishing the loss of the confidence by workers as grounds for recalling judges.196 Yet, regardless of the provisions of the law, judges who—due to their conduct during the 1968 Prague Spring—had lost the trust of Party hardliners (who had reestablished control after the Prague Spring had been crushed), subsequently lost their judicial posts anyway.197 The only significant, albeit restricted, reform of this system was introduced one year before the final collapse of the Communism in Czechoslovakia. A 1988 law198 extended the electoral term of professional judges to ten years.199 192

Law No.36/1964 Sb. Originally, the election of judges had been introduced in 1957 in Czechoslovakia by Law No.36/1957 Sb.

193

Between 1957 and 1964, the terms were only for three years (see Law No.36/1957 Sb.).

194

Ulč, op.cit. note 7, 13. On the Soviet-style election of judges, see Kucherov, op.cit. note 54, 328ff.

195

See Arts.43, 45, 46 of Law No.36/1964 Sb.

196

The law cited in the previous note, as amended by Law No.156/1969 Sb.

197

The precise number is unknown, although it seems that these judges numbered at least 40. E. Wagnerová, “Position of Judges in the Czech Republic”, in: J. Přibáň, P. Roberts, and J. Young (eds.), Systems of Justice in Transition. Central European Experiences since 1989 (Ashgate Publishing, Dartmouth, UK, 2003), 163ff., at 168. Many more judges, aware of the realities of neo-Stalinism, left the bench voluntarily.

198

See Law No.196/1988 Sb.

199

With the exception of the judges of the Supreme Court of Czechoslovakia, who were elected by the federal parliament (the Federal Assembly), judges were elected by the national parliaments of the Czech and Slovak socialist republics (the national councils) on the proposal of the National Front.

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In all Central European Communist countries, only incomplete reforms to strengthen the independence of the judiciary could be enacted. On the one hand, the vaunted omniscience of the Party—which could not be questioned in the 1950s—was no longer taken seriously. The potential of Socialist ideology to develop independent and effective guarantees of judicial independence began to be questioned even among official scholars in Poland and Hungary. On the other hand, the necessity for the regimes to maintain control over the judiciary did not allow for radical reforms even in the rather moderate Communist systems. A typical example was the moderately liberal Polish regime which—on the eve of the collapse of Polish Communism—had enacted a new law on the system of ordinary courts.200 While the new law provided for a substantial increase in judicial salaries and established that judges—save those on the Supreme Court—were to be appointed without any time limit by the Council of State upon a recommendation of the Minister of Justice, the Council of State still retained the power to recall judges (even if it was more limited than under the previous law).201 Also in the case of Poland, we should distinguish between ‘law in books’ and ‘law in action’. In fact, most positions in the high judicial bodies were reserved for trusted Party members.202 Although theoretically no political control was exercised over the Polish judiciary, a Supreme Court decision at the beginning of the 1980s, during the crisis of the Polish trade union movement, demonstrated that—since its judges were politically reliable—no such control was necessary. For strikingly political reasons, the Supreme Court refused to apply international treaties to which Poland was a party. In spite of the prevailing view of Polish scholars and some of its previous decisions to the contrary,203 the Court ruled as if Poland had a dualist approach to international law. 200

The Law of 20 June 1985, Dz.U. (1985) No.31 item 137. The earlier Polish law was much more restrictive vis-à-vis judicial independence: see the 1950 law on the structure of ordinary courts, Dz.U. (1950) No.39 item 360; and J.A. Piekałkiewicz, “Polish Administrative Law”, in: Wagner, op.cit. note 55, 373.

201

See J. Brol, “Prawo o ustroju sądów powszechnych” [The Law on the System of Ordinary Courts], 40 (11-12) Państwo i Prawo (1985), 4.

202

Rzepliński, “Principles and Practice of Socialist Justice in Poland” in: Bender and Falk, op.cit. note 50, 63ff. (describing the evolution in post-Stalinist Poland), 86 (out of 113 judges appointed between 1982 and 1986, 88 were Communist Party members).

203

K. Skubiszewski, “Glosa do postanowienia z 25 VIII 1987, I PRZ 8/87, Umowy międzynarodowe w porządku prawnym PRL” [A Note on the Decision of 25 August 1987, I PRZ 8/87, International Treaties in the Legal Order of the People’s Republic of Poland], 44 (6) Państwo i Prawo (1989), 135-145.

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Until the very end of the Communist regimes, neither law nor the practice of its application assured genuine judicial independence. This circumstance made Socialist judges vulnerable to external pressures from party functionaries.204 If it is a distinguishing feature of totalitarian regimes, in contrast to authoritarian regimes, that judges in totalitarian regimes are not able to “engage in genuine dialogue with executive rulers through critical examination of the regime’s most repressive policies”, whereas judges in authoritarian regimes “are not the blunt and perfectly pliable instruments of executive power”,205 then the Communist judicial systems retained their totalitarian features until the very last minute of their existence. Therefore, the following comment, made by a Czechoslovak judge shortly after the end of the Stalinist era, accurately describes the situation that prevailed throughout the Communist era: “In about ninety percent of the court’s agenda, there was not the slightest sign of interference in our decision-making. This observation, however, does not warrant the conclusion that some sort of ‘ninety percent judicial independence and integrity’ existed. Both the sorry experience with remaining ten percent and the awareness that someone might at any time inflict his ‘suggestion’ upon us, conditioned all our adjudication.”206

IX. Conclusions: Central European Legal Culture on the Eve of 1989 Many comparativists claim that the Socialist legal system formed a separate legal culture distinct from the two Western legal cultures—Continental and Common Law.207 Moreover, most Socialist scholars maintained the distinctiveness of their own legal culture.208 Whether we accept this distinction as valid, however, depends on the frame of reference through which one analyzes the issue. If we try to find the answer in rules and codes of the Socialist nations, we might conclude—after some hesitation—that their law in books still bore greater (Poland, Hungary) or lesser (Czechoslovakia) similarity to its Continental roots. Putting aside their law’s ideological deadwood, the core of 204

On the subject of ‘telephone justice’ in East Germany, cf. I.S. Markovits, Imperfect Justice (Clarendon Press, Oxford, 1995), 26ff.

205

M.J. Osiel, “Dialogue with Dictators: Judicial Resistance in Argentina and Brazil”, 20 Law & Soc. Inquiry (1995), 481, at 486.

206

Ulč, op.cit. note 7, 61 (emphasis in the original).

207

Zweigert and Kötz, op.cit. note 64, 294: “The legal systems which form the socialist legal family have a special character owing to their common foundation on the world view of Marxism-Leninism.”

208

Most prominently in Central Europe, see Eörsi, op.cit. note 40, 38.

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the Soviet conception of law and the legal process—which spread into Central Europe—was a set of formalistic doctrines resembling classical Continental positivism.209 As regards form, their law was close to German law of the early twentieth century.210 In fact, many typical Germanic features appeared in the Czechoslovak civil law—although not through its Austrian ancestry (despite the three amendments of 1914-1916, the 1811 Austrian Civil Code—in force in the Czech part of Czechoslovakia until 1950—was different both in its concepts and content from the 1900 German Civil Code211). Rather, they had been introduced through the indirect route of Soviet law transplants, themselves inspired by the German law of the early twentieth century.212 The first Czechoslovak Communist Civil Code of 1950 was, in some important respects, close to the structure of the 1922 Soviet Civil Code, including for instance the General Part, preceding other parts dealing with the law of contracts, in rem, persons, etc., a phenomenon which had been unknown in Czechoslovak-Austrian legal heritage prior to 1950.213 Ideologically, it was a kind of substantively simplified normativism; a naïve belief that law is composed of the norms enacted through the legislator and nothing else.214 Of course, Socialist codes and laws were substantively simplified; some rules were not used, some traditional institutions and principles disappeared; many strange new principles were added. Many legal paradigms of classical European legal thought were 209

J.N. Hazard, Settling Disputes in Soviet Society. The Formative Years of Legal Institutions (Columbia University Press, New York, NY, 1960), 478-479: “What the Soviet draftsmen retained after seven years of evolution [following 1917] to differentiate their revolution born-system from those of other lands lacked novelty, except for those tending to see difference in kind in a difference of degree.” Accord: Damaška, op.cit. note 89, 7 (mentioning that “despite the fact that they could point to some novel ‘Socialist’ forms, many important aspects of their legal process, when compared to puzzling Common-Law arrangements and institutions, appeared to exhibit a strong resemblance to conventional Continental systems”).

210

Zweigert and Kötz, op.cit. note 64, 309.

211

See F. Wieacker, A History of Private Law in Europe: With Particular Reference to Germany (Clarendon Press, Oxford, 1995), 383, 401.

212

V. Knapp, Velké právní systémy: úvod do srovnávací právní vědy [The Great Legal Systems: Introduction to Comparative Legal Science] (C.H. Beck, Praha, 1996).

213

On the General Part of the Civil Code cf. Wieacker, op.cit. note 211, 385386; or M. Schmoeckel, “Der Allgemeine Teil in der Ordnung des BGB”, in: M. Schmoeckel, J. Rückert, and R. Zimmermann (eds.), Historisch-kritischer Kommentar zum BGB, Vol.I. (Mohr Siebeck, Tübingen, 2003), 123ff.

214

Cf. critically I. Szabó, “The Notion of Law”, 18 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1976), 263-272, at 268.

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destroyed or disappeared; most of the traditional categories and concepts of civil law were abolished. In the system which did not distinguish between the private and public sphere, there was no point in maintaining an old distinction between private and public law.215 In spite of all of this, the pedigree of Continental legal thinking could be discerned, especially the doctrine of the sources of law and the fundamentals of legal reasoning. Characteristically, John Hazard has noted the frustration of many comparative law scholars who searched in vain for a method of Socialist law distinctive from Continental legal tradition.216 In contrast, if we step back from the ‘sources-of-law’ and ‘law-in-books’ comparisons, we can focus on more complicated issues. The ideological difference between Socialist and Western legal culture can be seen as essential. Socialist law was solely to serve the interest of the Party, which was the only competent authority capable of leading its nation towards the objective of the very existence of the Socialist society: a classless community of Communism. Socialist law, in this sense, might perhaps be closer to the family of religious legal systems, as the element of holy writ (the role of classical writings of Marxism-Leninism in legal reasoning), typical for religious legal cultures.217 As René David has put it, in Socialist states: “Everything does take place as though the Marxist-Leninist doctrine were a revealed dogma; it does not occur to Soviet jurists to question its merits; for them it is beyond any possible discussion.”218

215

This thesis was first advanced in 1922 by Lenin himself: “We cannot acknowledge anything being private, everything is for us public […].” A.F. Kleinman, V.I. Lenin o zakonnosti, sude i prokurature [V.I. Lenin on Legality, Courts and the Procuracy] (Izdatel’stvo MGU, Moskva, 1961), 23.

216

Hazard, op.cit. note 43, 521.

217

Ibid., 521 (quoting the opinion of a distinguished scholar of Islamic law).

218

David and Brierley, op.cit. note 15, 179. In recent years, alternative classifications of legal systems have become widespread. Cf. U. Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”, 45 Am. J. Comp. L. (1997), 5 (Western countries form a system of professional law, while most former Socialist countries and the countries of the Third World, as well as many developed nonEuropean countries (Japan, Thailand, etc.) form either systems of political law or religious law); and M. Van Hoecke and M. Warrington, “Legal Cultures, Legal Paradigms, and Legal Doctrine: Towards a New Model for Comparative Law”, 47 International and Comparative Law Quarterly (1998), 495 (distinguishing Western legal culture, based on individualism and rationalism, and Non-Western legal cultures— Asian legal culture with a collectivist approach, Islamic legal culture which does not recognize the separation of law, morals and religion, and African legal culture).

Chapter 3 From Stalinist Anti-Formalism to Socialist Textual Positivism: Central European Judicial Methodology during the Cold War To understand contemporary Central European judges and the problems which they have been experiencing in the transformation towards democracy and the rule of law, it is necessary to understand their Socialist predecessors and the problems which they experienced on their journey towards the Stalinist and post-Stalinist dictatorships. I have already explained who these Socialist judges were as well as the conditions under which they operated. However, crucial points remain to be added to my picture of the Communist judiciary: how did they argue; how did they think; how did they really implement Socialist ideals; where did they find Socialist law? My plan in this chapter is, first, to introduce basic terminology and the theoretical framework with which I will operate throughout the subsequent chapters. Above all, I will explain—employing Wróblewski’s analysis—the conception of the judicial ideology of application of law and, also, its two main opposing streams: the ideology of bound judicial decision-making and the ideology of free judicial decision-making. Since frequent reference will be made to formalism, a brief description of this quite vague—and often misunderstood—phenomenon will be necessary. On the basis of this theoretical framework, I will show the progression of Western legal culture throughout the last century from the rule-bound style of judicial application towards more substantive and instrumental reasoning. This might be conceived of—according to my methodology—as the move from a position close to the ideology of bound judicial decision-making to a position closer to the ideology of free judicial decision-making. The core of this chapter will be an in-depth study of Socialist law and adjudication. Three conceptual stages in the development of the Socialist conception of law will be discussed. First, the radical anti-positivist conception of law, associated with Marx, Engels and Lenin (the latter, at least, until the end of the Russian Civil War), and with lawyers such as Pashukanis. The anti-positivist ideas were being implemented in the Soviet Union for several years until the late 1920s. This era had no direct influence on Central European Socialist states after World War II. The second period was ushered in with the rise of Stalin’s power in the course of the late 1920s and especially the 1930s. The new conception of law suffered from internal tension. On the one hand, it was of a

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strongly positivist nature, as it preached a purely normative definition of law. On the other hand, the Stalinist conception of the application of law maintained some strongly instrumental (thus, anti-positivist) features; it expressly claimed the possibility of making exceptions to Socialist legality and, as we will see below, recognized an activist role for the judiciary in societal transformation. The third (post-Stalinist) period spanned the final three decades of European Communist states. In that era, positivist and formalist features in law prevailed. I will show that, while the quasi-religious (‘holy writ’) technique of legal argumentation triumphed during the first two periods, in the last ‘post-revolutionary’ dictatorial era judicial reasoning—although not necessarily legal scholarship—gradually became more ‘secular’, losing the express connection to Marxist rhetoric. I will offer my reader a journey through Socialist judicial files. We will see that the Stalinist judges were radical activists and anti-formalists who did not hesitate to rewrite the law in order to satisfy the ideals of the dominant ideology, the aims of societal transformation, or, most often, the needs of the ruling Party. After the fall of Stalinism, however, Socialist legal scholarship produced—and the Socialist judiciary put into effect—a strange amalgam of old-fashioned pre-Socialist positivism and Stalinist (and post-Stalinist) legal doctrine wearing a veil of Marxist pseudoscientific orthodoxy. We must go into this topic in detail. It is true that—following the systemic change of 1989—the visible features of the Marxist dogma, including their effects in law, were abandoned almost overnight; during the next few years, most old laws disappeared from the Central European scene. However, the core of the old law’s ideology, albeit lacking its explicit political flavor, has proved to have quite a strong potential to rule the current self-perception of the post-Communist judiciary. As one observer has noted: “In short, the very nature of totalitarian law suggests that even after the collapse of the overall system, the totalitarian legal heritage is bound to be more enduring and more deeply entrenched than might be assumed by those who see totalitarian law as entirely artificial, officially construed, and incapable, in any form, of being incorporated into other social systems.”1

1

A. Podgorecki, “Totalitarian Law: Concepts and Issues”, in: A. Podgorecki and V. Olgiati (eds.), Totalitarian and Post-Totalitarian Law (Dartmouth Publishing, Aldershot, 1996), 31.

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I. Ideologies of Judicial Decision-Making Although judges are rarely legal philosophers or theoreticians, and are seldom interested in legal theory, their work is theory-laden. Judges operate in a world full of concepts, doctrines, theories, and other abstract standards. Their work is dependent on generally accepted narratives about the nature of their activity. The content of these narratives is filled by judicial ideology,2 a quasi-description of judicial activity which is constructed through a complex set of interactions between academic teachings, political rhetoric of the separation of powers, judicial self-perceptions, the views and expectations of the legal community, and the prevailing opinions of society as a whole on the proper role of the judiciary. Judicial ideology determines and prescribes the proper method for the judicial interpretation of law as well as the ideal role which a judge should have in society.3 Throughout this work, I employ the term ‘ideology’ in a value-neutral manner without any negative or positive connotations.4 Following Jerzy Wróblewski’s analysis, I distinguish three main basic approaches to the judicial application of law.5 The first possibility is the ideology of bound judicial decision-making. It espouses concepts of limited law and limited sources of law, which I am going to develop 2

For the term and my intellectual inspiration see J. Wróblewski, The Judicial Application of Law (Kluwer Academic Publishers, Dordrecht, The Netherlands, Zenon Bańkowski ed., Zenon Bankowski and Neil MacCormick transl. 1992), translation of Wróblewski’s Sądowe stosowanie prawa (PWN, Warszawa, 1988).

3

The analysis that follows reflects my agreement with Mark Osiel, that “the judge resembles the resolutely anti-intellectual politician whose policies reveal him in fact to be, in Keynes’ words, ‘enslaved to some defunct economist.’ However disdainful of theory, the judge is sure to imbibe some notions concerning what adjudication is about and what makes some argumentation more persuasive to him than others. It is legal theory that provides him with those notions, however unaware he may be of their controversial status among jurisprudents”. M.J. Osiel, “Dialogue with Dictators: Judicial Resistance in Argentina and Brazil”, 20 Law & Soc. Inquiry (1995), 481, at 488.

4

In the meaning of the ‘ideology’, I follow Karl Mannheim’s ‘the total conception of ideology’ as elaborated in his 1929 Ideologie und Utopie (first transl. in 1936), see K. Mannheim, Ideology and Utopia: An Introduction to the Sociology of Knowledge (Harcourt, Brace & World, New York, NY, L. Wirth and E. Shils transl. 1968), 55ff., 64ff., 265ff. The very term ‘ideology’ in this meaning (as mentioned above in the main text) is value neutral, without attributing any positive or negative connotations to it. In contrast with value neutrality of this use of ideology, “[t]he particular conception of ideology is implied when the term denotes that we are skeptical of the ideas and representations advanced by our opponent” (ibid., 49). I owe thanks to Hynek Baňouch for our discussions on this topic.

5

See Wróblewski, op.cit. note 2.

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and illustrate further throughout this and the following chapters. This ideology maintains that, in their work, judges are fully bound by general rules, which in turn fully control their adjudication. General rules should be followed more or less mechanically, using arguments derived from the literal meaning of these rules. What matters according to this ideology is the correct outcome; in this context, ‘correct’ meaning logical consistency with general rules pre-established within the system.6 Weber’s ‘formally logical rationality’ captures and explains this approach.7 It is of no consequence whether or not the decision is made in accordance with some ideals of justice, whether or not it is effective, etc.8 On the opposite side of that spectrum, we find the ideology of free judicial decision-making.9 The basic tenets of this ideology are emphasis on outcomes consistent with values prevalent in the system (political ideology, religion, the idea of justice, effectiveness etc.); adherence to general rules is of secondary importance. What matters is the correct outcome; in this context, ‘correct’ meaning consistency with the applicable value system—not any sort of consistency with general rules.10 Finally, the ideology of legal and rational judicial decision-making is an effort to find a balance between the impossible ideals of bound judicial decision-making and too unrestrained conceptions of free judicial decisionmaking. The ideology of legal and rational judicial decision-making takes from the ideology of free judicial decision-making its realism, acknowledging that any legal system is necessarily open and gives judges a wide arena for creative adjudication. That is why the ideology of legal and rational judicial decision-making is closer to free judicial decision-making; at the same time, it emphasizes values of legal certainty which would be undermined if some basic tenets of legalism and formalism embedded within the ideology of bound judicial decision-making were to be completely ignored.11 The last several decades in Europe have witnessed a gradual decline of the ideology of bound judicial decision-making and a shift to less formal

6

Ibid., 250ff.

7

See infra, the text accompanying notes 31 and 32.

8

This basically corresponds to Mirjan Damaška’s hierarchical ideal of officialdom; see M. Damaška, The Faces of Justice and State Authority. A Comparative Approach to the Legal Process (Yale University Press, New Haven, CT, 1986), 18-23.

9

Despite a similarity in terms, it is not identical with the school of ‘free law’ (Freirechtslehre).

10

Cf. Wróblewski, op.cit. note 2, 250ff.

11

Cf. ibid., 229ff.

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and more substantive approaches to law.12 I will not describe, in detail here, the discussions trying to analyze a desirable ideology of judicial decision-making;13 this is not, after all, within the aim or scope of this work. However, I will attempt to show shifts of Western and Central European judicial and legal discourse between both poles of the spectrum of justification of judicial activity. As such, both ideologies—which are situated on the opposite poles of that spectrum—need more attention before the analysis itself starts, because some features of both ideologies are necessarily present in all developed legal systems. I.1. The Ideologies of Bound and Free Judicial Decision-Making in Comparison The ideology of bound judicial decision-making14 is a simplistic account of the judicial process which explains the nature of judicial activity as the application of enumerated pre-existing standards, typically the rules contained in codes and other legislation. This ideology rests on the theory of the separation of powers. It does so to the extent that, from today’s vantage point, it is fair to say that this theory ‘overdramatizes’15 the distinction between the judiciary and the legislature. Textual positivism (Gesetzespositivismus) is the principal methodology of legal interpretation upon which the ideology of bound judicial decision-making is based.16 In its most extreme version, textual positivism consists in nothing more than the textual exegesis of law. Legal theory—based on the ideology of bound judicial decision-making—carefully demarcates the line between the making of law, which is reserved exclusively to the legislature, and its application, a process in which courts are supposed to mechanically

12

Ibid., 26ff., 271ff., 305ff. and the text of this chapter infra.

13

Most importantly, in European circles, an attempt to describe such an ideology (although not using this terminology) has been made by R. Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Clarendon Press, Oxford, Ruth Adler and Neil MacCormick transl. 1989).

14

See Wróblewski, op.cit. note 2, 273ff.

15

H.L.A. Hart, The Concept of Law (Oxford University Press, Oxford, 2nd ed. 1994), 274.

16

Tony Weir translates ‘Gesetzespositivismus’ as ‘textual positivism’. The original German term actually means the positivism of statutes, i.e., legal reasoning adhering only to statutory texts (the literal translation ‘legal positivism’, however, does not mean the same in English as in German and many other Continental languages, including Slavic languages). Cf. F. Wieacker, A History of Private Law in Europe: With Particular Reference to Germany (Clarendon Press, Oxford, Tony Weir transl. 1995), 442ff. See, also, F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff (Springer Verlag, Wien, New York, NY, 1982), 186ff.

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match up that law to facts.17 The typical paradigm of statutory construction based on this ideology is the syllogism.18 In contrast, the ideology of free judicial decision-making is pragmatic. It does not adore any particular method of the interpretation of the law; all are of equal value. What matters is the result achieved, while the method used to bring it about is of secondary and mostly rhetorical importance. As law is, in any case, open to a plethora of divergent readings—this ideology goes on—there is no qualitative difference between the tasks performed by the judiciary and those of the legislature. The original idea behind bound decision-making is to limit judicial discretion, thereby limiting judicial power. For a judge to be bound to obey the formal sources of law is supposed to be the ordinary state of affairs, assuring the predictable application of law.19 Under the ideology of bound judicial decision-making, the legal system is conceived of as static. Legal actors attribute to the system a quasi-material existence.20 Law is composed of nothing but the binding sources of law. The concept of law is inseparably connected with formal validity;21 as formal validity sets the criteria which determine whether or not something is the law, the law is easily recognizable.22 Anything that does not qualify facing the criteria-of-validity-test is ‘non-law’ and, therefore, is of no relevance in legal argumentation. Most extra-legal standards, policies, efficiency, etc. are excluded from the reasoning when law is applied23 because they are not ‘the law proper’. Although they are pertinent in the process of legislation, they are of no consequence in adjudication. The notion of, say, persuasive

17

Damaška, op.cit. note 8, 37.

18

Wróblewski, op.cit. note 2, 273ff.

19

Of course, “once it is perceived that each decision by a legal official involves a personal choice and can never be purely mechanical in character, adherence to binding law may itself be perceived as highly arbitrary, in the absence of any element of persuasion”. P.H. Glenn, “Persuasive Authority”, 32 McGill Law Journal (1987), 261, at 264.

20

C. Varga, Law and Philosophy. Selected Papers in Legal Theory (Faculty of Law of Loránd Eötvös University, Budapest, 1994), 240ff., 297ff.

21

For a wonderful introduction to the concept of formal validity, its historical emergence, its socioeconomic prerequisites and its historical antecedents see ibid., 209ff.

22

This might also be referred to as ‘hard positivism’. Conceptually, such ‘hard positivism’ is advanced in the original edition of Hart’s Concept of Law (1960), while the postscript to the second edition reflects a shift to ‘soft positivism’ (see the second edition: A. Bulloch and J. Raz (eds.) (Clarendon Press, Oxford, 1994), 250-254).

23

Wieacker, op.cit. note 16, 341.

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authority is without any significance whatsoever. That is why I call this conception of law one of ‘limited law’.24 Within the ideology of bound judicial decision-making, limited law is confined to a few formal ‘sources of law’, so that the very concept of sources of law is highly restrictive. In the Continental version of this ideology, law is completely identified with the enacted law of the nation state,25 i.e., national codes and statutes.26 The application of international legal norms within the sphere of municipal law is at best very unlikely, if not conceptually excluded.27 According to the ideology of free judicial decision-making, the effort to make a rigid separation of law from non-law is considered unworkable. Since judges are viewed, at one and the same time, as both a law-applying and law-making body, a judge must necessarily take into account factors other than strictly legal ones. If a judge adhering to the ideology of free judicial decision-making serves in a conservative state which embraces a liberal laissez-faire philosophy, she is likely to find these non-legal factors in the value framework of the community.28 However, if the judge serves in a type of state which actively intervenes in social affairs, the ideology presupposes the enforcement of some official state policy and doctrines which had a previous and separate existence from the text of the statute and with which any statute must be consistent.29 The overall conception of the ideology of bound judicial decisionmaking and the concepts related thereto rest on clear and rigid dichoto24

I have borrowed the term from, and have been inspired by, D. Lyons, “Justification and Judicial Responsibility”, 72 Cal. Law R. (1984), 178.

25

K. Zweigert and H. Kötz, An Introduction to Comparative Law (Oxford University Press, Oxford, 3rd ed., T. Weir transl. 1998), 15: “At a time of growing nationalism, this legal narcissism led to pride in the national system.”

26

As Common Law spread throughout the world from its English source, it came to earn the title, ‘common’, and nationalist conceptions of law became quite foreign to Common Law systems. It seems to be much more ‘transnational’ than one could expect from the position of a positivistic perspective on a domestic legal order. It has a unique “consciousness that common law is a whole”. E. Örücü, “Comparative Law in British Courts”, in: U. Drobnig and S. van Erp (eds.), The Use of Comparative Law by Courts (The Hague, London, Boston, Kluwer Law International, 1997), 257. As Örücü points out, this temptation is really unique and is comparable, perhaps, only to the Islamic legal family.

27

In fact, the dualist approach to the relationship of international to municipal law seems to be characteristic for the nineteenth century. See, typically, H. Triepel, Völkerrecht und Landsrecht (C.L. Hirschfeld, Leipzig, 1899).

28

In view of the American obsession with efficiency, an American judge might be likely to find a basic comparator of her legal reasoning in the concept of efficiency.

29

Cf. Damaška, op.cit. note 8, 71ff.

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mies: binding/non-binding, applicable/non-applicable or valid/invalid,30 where any third alternative (e.g., an argument not formally binding but still having some force in legal argumentation) is conceptually ruled out (tertium non datur). A related concept is that of ‘hard’ law, with which the ideology of bound judicial decision-making is permeated. For instance, it posits that the only characteristic of law which matters is its binding force; anything else (for example, the persuasiveness or societal acceptability of some selected legal solution) is to be disregarded. It is worth mentioning the historical interests which lay behind the evolution of both rival ideologies of judicial decision-making. The modern ideology of bound judicial decision-making—as reflected in the formalization of law and the precise and clear separation of it from ‘non-law’—was in the immanent interest of the emerging bourgeoisie; it needed law to be comprehensible and predictable, run by state bureaucrats and judges that resembled rather self-operating machines, as opposed to the feudal legal chaos and the misuse of law by omnipotent absolutist governments.31 Although today, these early modern notions of judges as perfect machines seem naïve and ridiculous, if not offensive, such was not the case when the early modern idea of bound judicial decision-making was becoming prominent. This process has been, perhaps, best explained by Max Weber: “Juridical formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions. Procedure becomes a specific type of pacified contest, bound to fixed and inviolable ‘rules of games’.”32

The idea that it is conceptually possible to regulate all future legally relevant behavior by general rules is closely connected to the liberal laissez-faire idea of the limited state and the early liberal idea of law. As most social 30

Cf. M. Van de Kerchove and F. Ost, Legal System Between Order and Disorder (Oxford University Press, Oxford, New York, NY, 1994), 97-98.

31

See M. Rheinstein (ed.), Max Weber on Law in Economy and Society (Cambridge University Press, Cambridge, MA, E. Shils and M. Rheinstein transl. 1969), 226ff.

32

Ibid., 226-227. According to Weber, the guaranty of adherence to objective norms “was sought after by economic interest groups which the princes wished to favor and tie to themselves because they served their fiscal and political power interests. Most prominent among these were the bourgeois interests, which had to demand an unambiguous and clear legal system, that would be free of irrational administrative arbitrariness as well as of irrational disturbance by concrete privileges, that would also offer firm guaranties of the legally binding character of contracts, and that, in consequence of all these features, would function in a calculable way. The alliance of monarchical and bourgeois interests was, therefore, one of the major factors which led towards formal legal rationalization”. Ibid., 267. For a modified account of this, cf. R.M. Unger, Law in Modern Society. Towards a Criticism of Social Theory (Free Press, New York, NY, London, 1976), 66-76.

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problems would be settled by means other than resort to the state and its repressive machinery, the extent of the corpus of laws would also be quite small. That is why the early modern lawyers and philosophers considered it conceptually possible for law to maintain the characteristics of generality, formality, positiveness and autonomy, which would promote legal security also through bound judicial decision-making.33 In contrast, the motives behind the development of the ideology of free judicial decision-making are more diverse. They cover rationales starting from the anti-formalist revolt against conceptual possibility of general rules through various revolutionary programs to transform society by all possible means, including judicial power, which should also implement the policies and ideals of the new social order, disregarding constraints put in place by general rules and classical ideologies of decision-making. The ideology of bound judicial decision-making intertwines most features of the nineteenth-century Continental exegesis. Many of these ideological features, as I shall show presently, are also present in the explicit judicial style of opinion-writing in many European Continental countries, above all France. In contrast, the ideology of free decision-making in its radical form never ruled the self-perception of Continental judges—with the exception of revolutionary occasions, such as the first years after the 1917 October Revolution in Russia,34 the ideology of decision-making in Nazi Germany,35 or, as will be analyzed below, the first years following the Communist takeovers in Central Europe. In fact, both models are conceptually possible even in their extreme variants, although they are rarely realized. The pure model of free judicial decision-making would lead to a situation of utter legal chaos, as unrestrained judges would decide all legal issues according to their own wisdom of justice (or any other applicable value system).36 Under the pure model of bound judicial decision-making, in contrast, in case there is any gap in the law or any other problem of interpretation, judges are required to refer the issue back to the law-maker, which is the only body competent to fill that gap by a new rule. A legal system based on this extreme notion does not need legal interpretation by law applying bodies, and the only 33

Cf. Unger, op.cit. note 32, 52ff.

34

J.N. Hazard, Settling Disputes in Soviet Society. The Formative Years of Legal Institutions (Columbia University Press, New York, NY, 1960), 17: the early Soviet regime, after annihilating the old Tsarist law, placed “the right to develop law in the hands of the court exercising its own concept of Socialist justice”.

35

See I. Müller, Hitler’s Justice. The Courts of the Third Reich (Harvard University Press, Cambridge, MA, Deborah Lucas Schneider transl. 1991).

36

This was basically what happened in Russia after the October 1917 Revolution. Cf. for a more thorough elaboration, Hazard, op.cit. note 34.

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suitable interpretation is the authentic interpretation by the law-giver or like body.37 For this reason, although both ideologies are conceptually possible, over the long term they are impossible to realize practically. I.2. Formalism and Anti-Formalism in Judicial Reasoning The ideology of bound judicial decision-making is deeply intertwined with formalist reasoning, which has a counterpart and rival ideology in anti-formalist reasoning. Since I refer to certain types of judicial reasoning as formalist, I must clarify what is meant in this work by ‘formalism’ and ‘anti-formalism’.38 According to Roberto Unger: “There is an issue that overpowers and encompasses all others in the history of the modern Western rule of law [...] the problem of formality in law.”39 As judicial decision-making is a highly formalized activity, labeling judicial activity as formalist in this sense shall be prima facie value neutral or often even positive, reflecting the governing conception of the judicial and legal discourse, which in the era of modernism has developed towards being primarily rule-based.40 To quote Unger again: “law is never purely formal, nor can formality ever vanish.”41 One can easily find a plethora of meanings of formalism in legal writings.42 That is why a brief overview of this problem here is necessary. 37

An example of this is the French référé législatif, which required a judge, in the case of uncertainty with interpretation of the law, to address the matter to the legislature (e.g., Zweigert and Kötz, op.cit. note 25, 120), as well as the Austrian law issued by Emperor Joseph II in 1786 and abolished by Leopold II five years later. See H.W. Baade, “Stare Decisis in Civil Law Systems”, in: J.A.R. Nafziger and S.C. Symeonides (eds.), Law and Justice in a Multistate World: Essays in Honor of Arthur T. Von Mehren (Transnational Publishers, Ardsley, NY, 2002), 533-554, at 537-538 (explaining the Prussian system). Cf. C. Varga, Lectures on the Paradigms of Legal Thinking (Akadémiai Kiadó, Budapest, 1999), 23ff.

38

Cf. the classic article by Hans Kelsen, “Legal Formalism and the Pure Theory of Law”, in: A.J. Jacobson and B. Schlink (eds.),Weimar. A Jurisprudence of Crisis (University of California Press, Berkeley, Los Angeles, CA, London, 2000), 76, at 81.

39

Unger, op.cit. note 32, 203.

40

F. Schauer, “Formalism”, 97 Yale L.J. (1988), 509.

41

Unger, op.cit. note 32, 205.

42

Martin Stone, for instance, found in legal scholarship at least seven varieties of formalism. See M. Stone, “Formalism”, in: J. Coleman and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, Oxford, 2002), 166-205, at 170ff. See, also, an introduction to the problem by the Finnish scholar, Raimo Siltala, A Theory of Precedent. From Analytical Positivism to a Post-Analytical Philosophy of Law (Hart Publishing, Oxford, 2000), 50ff. Siltala distinguishes five basic modes of formalism: (1) constitutive formality (the formal relation of legal standard to its source, which gives the standard ideally a binary code valid/ non-valid); (2) systemic formality, defined by internal coherence of the legal system

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The most general sense of the term, ‘formalism’ is that which has already been outlined with reference to Weber. In this sense, formality relates to important qualities which characterize any modern legal system: “the striving for a law that is general, autonomous, public and positive.”43 However, this type of formalism, which posits the nature of law as closed, autonomous, positivist, etc., can be realized in a more or less pure form. In this work, I will consider various degrees of juridical formalism and, in so doing, will take into account both aspects of the style of judicial reasoning, on the one hand, and the surrounding environment on the other. Whereas the former relates to judicial reasoning in the drafting of judicial opinions, the latter consists of all relevant participants of the legal system who evaluate judicial opinions and make judgments about the proper role of courts in society. The environment is made up, in part, of opinions of legal scholars and legislators, as well as the general approval of the judicial style by both the smaller professional community (lawyers) and the wider public (society as a whole or its wider segments), including other relevant actors in the system (politicians, etc.). Both components— the judicial style and the environment—form the judicial ideology of law application, as well as the degree of formalism in legal reasoning. What are, however, the components of formalism? First, above all, judicial formalism refers to methodological formalism, which reflects the philosophy of textual positivism. The high degree of formalism presupposes that—in their reasoning—judges employ arguments of the plain meaning of a statutory text and present their analysis as a sort of inevitable logical deduction from this text.44 The judge-formalist treats legal concepts as if they yielded complete and crystal-clear content.45 She denies that the connection between a legal text and the resolution of a hard case is remote—that the solution is indeterminate and that it requires moral, political, and economic considerations. She does not acknowledge that rules are vague, uncertain, and conflicting or that there is often a choice from among several rules that might apply in an individual case.46 and its standards; (3) mandatory formality, which relates to the formal binding force of the source of law (binary code binding/non-binding); (4) structural formality, which relates to the degree of closeness of operative facts of the rule (high degree of formalism relates to concrete clear rule); and (5) methodological formality, which places emphasis on a literal reading of the law. My analysis primarily relates to the last sense of formalism. 43

Unger, op.cit. note 32, 204.

44

Siltala calls this type of formalism methodological formality. Siltala, op.cit. note 42, 50ff.

45

Thus, the judge-formalist lives in von Jhering’s ‘heaven of legal concepts’ (juristischen Begriffshimmel).

46

See, generally, Schauer, op.cit. note 40.

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Any judge is bound by rules;47 but the judge-formalist overtly overstates this bindingness while, on the contrary, the judge-anti-formalist overtly downplays it. Second, formalist reasoning is viewed as a purely mechanical mental operation. The formalist school has adopted the justification of ‘easy cases’ as its paradigm of legal argumentation.48 What the extreme versions of formalism and anti-formalism share in common is that neither of them distinguish between hard and easy cases.49 Yet, while formalists present the judicial application of law as a mechanical activity in any case, however complex, for anti-formalists any case—however simple and straightforward—is at least potentially a hard one.50 The use of teleological and similar arguments—which place emphasis on the rationale of a legal rule, its purpose, the policies underlying it, its societal and economic functions, its constitutionality—might be designated as an essentially anti-formalistic decision-making (and an aspect of the ideology of free judicial decision-making). The judge—radical antiformalist—would reject formalities as such, claiming that all cases must be decided considering the purpose of the rule and the text itself never decides the case. Furthermore, it is important to distinguish between that kind of formalism in which formalistic argumentation is employed which actually leads to a formalistic result, and formalism in which formalistic argumentation is used as a veil to obtain a result which, however, could not be reached through formalistic reasoning. It is wise not to confuse both very different types and strategies of formalism. The latter might be criticized for a lack of openness necessary to appreciate what is really going on behind the veil of formalistic reasoning. The former, in contrast, is likely to produce an unreasonable application of law, disregarding societal conditions and the rational meaning of that law within the society. If a judge who engages in a formalist discourse leading to formalistic results is not aware of the problems relating to formalism, she has inter47

Cf. ibid.

48

Accord: e.g., J. Bengoetxea, The Legal Reasoning of the European Court of Justice (Clarendon Press, Oxford, 1993), 116. Cf. D. Lyons, “Justification and Judicial Responsibility”, 72 Cal. Law R. (1984), 178, at 179, claiming that we should take the theory of limited law and its accompanying doctrine of legalistic justification as “a limited theory, applicable only to cases that can be decided on the basis of existing law and as ignoring the problem of justifying decisions in hard cases”. Moreover, this theory “ignores hard cases, or cases that cannot be decided by applying established rules of law”.

49

On the distinction between hard and easy cases, see note 89 infra and the accompanying text.

50

Cf. Stone, op.cit. note 42, 172-173.

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nalized formalism and its values. Judges of this sort are real and authentic formalists. They do not reveal what is behind the formalist veil of their reasoning because they themselves are really not aware what is there. If judges apply formalist reasoning in order to reach a result which cannot be reached in this way, they are aware that formalism does not work. They are also aware of the interpretational choices with which the application of law presents them; but in spite of this, they use formalism in order to achieve another goal, e.g., to satisfy the generally prevailing formalist ideologies of judicial decision-making and thus—through their seemingly formalist reasoning—satisfy expectations of the professional or wider public.51 In this case, formalism is not internalized as the real nature of judicial activity.52 Alternatively, a judge may not be able to act in a different way due to objective reasons, e.g., the very conditions of the totalitarian regime might force honest judges to rely on the letter of the law in order to create a safeguard against possible intrusions by state authority. Similarly, there are reasons of a subjective nature, e.g., the inability to decide the real question in dispute might push judges to dispose of their cases on formalist grounds which offer a much easier way of handling hard cases. In such a situation, formalism might be internalized in its own peculiar way because, in the opinion of this sort of judge, it is the only way in which judicial decision-making really ‘works’. I.3. The Decline of Formalism and Bound Judicial Decision-Making in Western Law The ruling ideology of judicial decision-making in Continental Europe in the nineteenth century was constructed on the basis of the doctrines of early modern liberalism53 and its theories of the separation of powers. As I have already shown, the development of new views on law were related to other historical trends, such as the end of the era of absolutist monarchy, the unhappy historical experience with activist judicial law-making in 51

Vivian Grosswald Curran claims that this seemingly formalist tactic must be seen as an aspect of positivism because “the judicial claim that it was applying enacted law signaled judicial approval of enacted law, even where the application may have been non-apparent, or even non-existent”. V. Grosswald Curran, “Fear of Formalism: Indications from the Fascist Period in France and Germany of Judicial Methodology’s Impact on Substantive Law”, 35 Cornell Int’l L.J. (2002), 101, at 150.

52

See, generally, M. de S.-O.-l’E. Lasser, “Judicial (Self-)Portraits: Judicial Discourse in the French Legal System”, 104 Yale L.J. (1994-1995), 1325; and id., Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford University Press, Oxford, 2004) as well as the analysis of this work below.

53

Accord: Damaška, op.cit. note 8, 34.

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feudal France,54 and the emergence of the liberal laissez-faire capitalist states and their new legal systems.55 It is necessary to see the origins of this extreme version of positivism—close to the ideology of bound judicial decision-making—in the French and Austrian theories of legal exegesis of the early nineteenth century.56 The German ‘conceptual jurisprudence’ (Begriffsjurisprudenz) comes at a later stage in the development of these theories.57 Although it seems that the ideology of bound judicial decision-making in its most extreme form has never been fully internalized in judicial practice,58 my purpose is not to give a detailed account of the nineteenthcentury theories of the judicial process. Rather, my more modest claim is that the nineteenth-century Western European judges and, above all legal scholars, came nearer to the formalist ideals and bound judicial decisionmaking than any of their successors. The old ideology of bound judicial decision-making, intertwined with textual positivism, lost its prominence for many reasons. First, there was the recognition that, despite the expectations of some eighteenth-century revolutionaries, law was not—nor could it ever have been—easily deducible from legal texts. The purest and most extreme model of the ideology of bound judicial decision-making had been overturned already in the early 1800s, with the abolition of the institution of mandatory judicial references to the legislature (référé législatif) in case of interpretational doubts, when the judiciary in France was granted full competence to 54

A classic on this is J.P. Dawson, The Oracles of the Law (The University of Michigan School of Law, Ann Arbor, MI, 1968), esp. 362-373. On the French feudal parléments and their role in the revolutionary conception of judicial activity, see, e.g., B. Stone, The French Parlements and the Crisis of the Old Regime (University of North Carolina Press, Chapel Hill, NC, 1986); Zweigert and Kötz, op.cit. note 25, 85ff.

55

Cf. Wróblewski, op.cit. note 2, 273: “The ideology of bound judicial decision-making is the product of liberal thought and legal positivism.”

56

Dawson, op.cit. note 54, 392ff.

57

U. Falk, Ein Gelehrter wie Windscheid: Erkundungen auf den Feldern der sogenannten Begriffsjurisprudenz (Vittorio Klostermann, Frankfurt am Main, 1989).

58

My explanation presents a danger of inevitable simplification and even a caricature. For an attempt at the accurate picture of judicial formalism in the nineteenth century see R. Ogorek, Richterkönig oder Subsumtionsautomat? Zur Justiztheorie im 19. Jahrhundert. Veröffentlichungen des Max-Planck-Instituts für europäische Rechtsgeschichte, Rechtsprechung/ Materialien und Studien, Bd. 1 (Vittorio Klostermann, Frankfurt am Main, 1986). Cf. also R.C. van Caenegem, European Law in the Past and the Future. Unity and Diversity over Two Millenia (Cambridge University Press, Cambridge, 2002), 71-72, mentioning examples when French nineteenth-century judges did not accept the ‘robot-like role’ assigned them by under the then prevailing conceptions; Dawson, op.cit. note 54, 374-431, esp. 386ff.

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interpret the law.59 Already at the end of the nineteenth century—in the face of demonstrations of the practical impossibility of its claims—the ideology of bound judicial decision-making came to be considered obviously naïve, and critical legal doctrine started to explore the flaws seen in this ideology.60 Moreover, the ideology of bound judicial decision-making seems to be intrinsically connected with the era of ‘the long nineteenth century’ and its ideal of the liberal limited state, political stability and the emphasis on keeping state intervention to a minimum. Therefore, it could not survive untouched the collapse of the model for which it was constructed and which it served. For this reason, Continental legal culture underwent a gradual transformation in the post-World War I era61 and, particularly, after World War II. “The legal positivistic approach to law relies in particular on confidence in the stability of the political situation within the state and on the guarantee that the ‘right’ solution will be found by the legislator.”62 The realities of the New Era which emerged from World War I found neither full confidence in the legislature63 nor societal stability. To fill in this gap that arose in the New Era of the twentieth century, a very different and creative approach to judicial law-making was called for.64 Therefore, the ideology of bound judicial decision-making had to be repudiated for practical reasons. Textual positivism became an impractical obstacle to legal development and to the proper functioning of the law. 59

Obligatory reference to the legislature was abolished already in 1800; see Dawson, op.cit. note 54, 379. On the institution of facultative reference in the 1830s, see Zweigert and Kötz, op.cit. note 54, 120 (noting that these references were never used in practice).

60

Wróblewski, op.cit. note 2, 273ff.

61

Wieacker, op.cit. note 16, 409 (indicating that this process started in Germany even before 1933).

62

W. Ott and F. Buob, “Did Legal Positivism Render German Jurists Defenceless During the Third Reich?”, 2 Social & Legal Studies (1993), 91-104, at 96.

63

Most Central European judges in the new republics after World War I remained monarchists in their hearts and opposed weak governments based on systems of chaotic parliamentarism. For instance, according to Dawson, as the German executive and legislature were “[c]onfronted with turmoil and conflict on so vast a scale and with claims that might overtax the nation’s resources, it is no wonder that [they] stood irresolute for a time. But for judges who had struggled to conserve the values of the society they had known, this was not the kind of government to which they must defer; indeed, this was the government, some would say, that had allowed the catastrophe to occur through weakness, callousness, or ineptitude”. Dawson, op.cit. note 54, 472.

64

Cf. numerous examples are provided by Wieacker, op.cit. note 16, 410-422.

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Even more importantly, the remodeling of the state, the growth in its powers, and the building of the welfare and regulatory state fundamentally transformed the accepted conceptions of state and law. The government ceased to be limited to the few issues for which the liberals opined the state is suitable, and the developing conception of law left behind the old liberal ideal of minimal—mostly private—law based on one all-encompassing code. While the number of laws, regulations and decrees in Western Europe inflated throughout the last five decades of the twentieth century, judicial power and the role of judicial interpretation also expanded. As the role of the administrative welfare state increased, the role of the judiciary tracked its development.65 In this way, the “infusion of broad political considerations, necessitated by expanding judicial review of the constitutionality of statutes” was “quite damaging to the ‘closeness’ of the logically legalist universe”.66 Efforts at the textual reading of abstract constitutional provisions demonstrated the absurdity of textual positivism, as there is seldom any sensible textual way in which such provisions might be read.67 Textual positivism 65

M. Cappelletti, The Judicial Process in Comparative Perspective (Clarendon Press, Oxford, 1989), at 4, 24. Cf. Unger, op.cit. note 32, 196-197: “Language is no longer credited with the fixity of categories and the transparent representation of the world that would make formalism plausible in legal reasoning or in ideas about justice. In the absence of belief in the naturalness of existing hierarchies of power distribution, the legitimacy of governmental, including judicial, activity comes to depend increasingly on the welfare consequences of that activity.”

66

Damaška, op.cit. note 8, 38 (at note 40).

67

Wieacker, op.cit. note 16, 444. For an argument in this vein by a leading American constitutional scholar, see J.H. Ely, Democracy and Distrust (Harvard University Press, Cambridge, MA, 1980), in particular chapter 2 (“The Impossibility of a Clause-Bound Interpretivism”). It is for this reason that Kelsen explicitly refused to use abstract terms like ‘democracy’, ‘rule of law’, ‘liberty’ or ‘freedom’ in constitutional adjudication. See H. Kelsen, “Wesen und Entwicklung der Staatsgerichtsbarkeit”, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 5 (1929), 30-88, reprinted in: H. Klecatsky, R. Marcic, and H. Schambeck (eds.), Die Wiener Rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, Bd. 2 (Europa Verlag, Wien, 1968), 1813, 1818ff., 1853. The application of such abstract and open-ended terms was, in Kelsen’s view, unacceptable because—were it otherwise—the constitutional courts would receive ‘absolute power’ and the balance within the system of the separation of powers would be forever lost. Cf. the critique of a leading Kelsenian expert: S.L. Paulson, “On Hans Kelsen’s Role in the Formation of the Austrian Constitution”, in: W. Krawietz, R.S. Summers, O. Weinberger, and G.H. von Wright (eds.), The Reasonable as Rational? On Legal Argumentation and Justification. Festschrift for Aulius Aarnio (Duncker and Humblot, Berlin, 2000), 385-395, at 394-395: “If, however, one takes constitutionalism further, understanding it to represent not just the requirement of legality but also a ‘constitutionalization’ of fundamental values, with an

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became not only undesirable but, above all, entirely unfeasible. Miguel Poiares Maduro has remarked that the crisis of formal reasoning has been caused by “the extension of the ‘rule of law’ to domains traditionally out of its range of action. The growth of administrative and constitutional law and the increase of social and economic regulation led to a change in the way in which law was conceived.”68

This development gained significantly in strength for other reasons as well. Adherence to the letter of the law was discredited by the realization that the positive law might sometimes be grossly unjust, as happened during the Nazi era.69 Some influential scholars, such as Gustav Radbruch, even associated positivism with the horrors of the Nazi machinery,70 although these claims are now generally considered overstated if not wrong altogether.71 In light of these concerns about leaving law-making exclusively in the legislature’s hands, the growth in the role of the judiciary, ‘the least dangerous branch’,72 was appreciated and viewed as an improvement in democracy as well as an illustration of the principle of the separation of powers and the system of checks and balances.73 Textual positivism and the ideology of bound decision-making themselves came to be considered dangerous. Last but not least, the growing power of comparative law in the course of European integration has ‘disrupted’ the national constructs and concepts, which until then had seemed to be natural and the only possible ones.74 One small but good comparison might radically call into doubt the superiority of hitherto unquestioned national rules. Suddenly, instead of one unchallengeable legal methodology and style of legal rhetoric, a national eye to constitutional protection of fundamental rights, then it is hard to avoid the conclusion that Kelsen takes back in the name of moral skepticism some of what he has given us under the rubric of constitutional review.” 68

M. Poiares Maduro, We The Court. The European Court of Justice and the European Economic Constitution. A Critical Reading of Article 30 of the EC Treaty (Hart Publishing, Oxford, 1998), 17; similarly op.cit. note 32, 192ff.

69

Wieacker, op.cit. note 16, 421.

70

For instance, G. Radbruch, “Fünf Minuten Rechtsphilosophie”, Rhein-Neckar-Zeitung (12 September 1945), reprinted in: G. Radbruch, Rechtsphilosophie (K.F. Koehler, Stuttgart, 1950), 335-337. See, also, R. Alexy, The Argument from Injustice. A Reply to Legal Positivism (Clarendon Press, Oxford, B. Litschewski and S.L. Paulson transl. 2002), 40ff.

71

The classic on this is: Bernd Rüthers, Die unbegrenzte Auslegung: Zum Wandel der Privatrechtsordnung im Nationalsozialismus (Athenäum, Frankfurt am Main, 1973).

72

A. Hamilton, “The Federalist No.78”, Independent Journal (14 June 1788).

73

Cappelletti, op.cit. note 65, 4.

74

Presented by many scholars as the ‘disruptive power’ of comparative law. Cf. M.W. Hesselink, The New European Legal Culture (Kluwer Law International, Deventer, The Netherlands, 2001), 38.

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observer might see a plethora of often strikingly different methodologies, which nonetheless often lead to quite similar results.75 All dogmatism needs a Holy Writ, the one Bible or the one code, a contemporary European scholar has noted.76 In consequence, a parochial textual positivism became conceived through this plethora of European legal cultures. The legal cultures of Continental Europe, as they stand now, are in a sense the result of a clash between the old textual positivism and the ideology of bound judicial decision-making and the ideologies of free judicial decision-making—portraying a judge relatively unconstrained in law-making which would fit the particular circumstances of the case before her. The latter, European ‘realism’, has not entirely prevailed in its conflict with classical positivism but has influenced Continental legal thought sufficiently enough.77 On the one hand, Continental scholarship has retained basic doctrines of Continental classical positivism. In this sense, remnants of textual positivism and bound judicial decision-making still endure. In Western Europe, the role of courts in lawmaking is “still far from clearly articulated”.78 Therefore, it can be said that modern law, and particularly civilian legal thinking, is “deeply impregnated with legal-positivist philosophy, the validity of rules is assessed by reference to formal criteria—of competence, procedure, and sometimes basis—that are fixed by the legal order itself, generally by its higher norms on the constitutional level. […] Validity is then understood in an exclusively formal way, as a norm’s membership of a given legal order. […] The validation process is at once unilateral (taking into account only the rule’s formal validity: that it has been enacted in conformity with intra-systemic criteria), absolute (leading to unambiguous results: a rule will be declared absolutely valid or totally void), and hierarchized (validity is always assessed in terms of basis, which necessarily supposes an ascent from a lower to a higher norm).”79

On the other hand, the new concepts found in general clauses (abuse of rights, good faith, public policy, gute Sitten, protection of public order, etc.), expansive constitutionalism and constitutional adjudication all have assisted 75

The extent to which this thesis—as outlined in the comparative-law classic by Konrad Zweigert and Hein Kötz (Introduction to Comparative Law)—is really valid, is now the subject of intensive discussion. However, my modest claim is that legal systems differ from each other less by their outcomes than by their rhetoric and methodologies.

76

Hesselink, op.cit. note 74, 38.

77

Cf. Lasser, op.cit. note 52, “Judicial (Self-)Portraits”, 1344ff.; and id., op.cit. note 52, Judicial Deliberations, 27-61. According to Lasser, the breakthrough in French legal thinking was—without doubt—Gény’s writings at the turn of the twentieth century.

78

Hesselink, op.cit. note 74, 12.

79

Van de Kerchove and Ost, op.cit. note 30, 97-98.

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in effecting an adaptation of the system to changing circumstances.80 The code system was able to survive because of the shift between the ruler and the ruled: whereas a code ruled the judges in the past, in the present it is ruled by them.81 However, in any case, the Continental code system is no longer a classical code system: the death of the classical, liberal code system of the nineteenth century was caused by an increasing number of particular laws and regulations, the growth of public law, etc.; this has only accelerated in recent decades with the ongoing integration of Europe and the never-ending stream of Brussels directives.82 Conceptually, similar changes could also be observed in the Common Law world. While the nineteenth century produced the rigid doctrine of stare decisis, the less formal and more flexible system of equity lost much of its former significance, and the courts advocated in the advantage of clear-cut rules, the following century shifted the balance again.83 Common Law courts now engage in a ‘realist approach to judging’; they are more “skeptical about rules and principles, less deferential to precedent, more concerned with a decision’s social consequences”.84 The new European legal culture rejects the concept of clear dichotomies, between binding/non-binding arguments, valid/invalid law, etc. where “tertium non datur”. This idea—as conceived by the ideology of bound judicial decision-making—is based on the presumption that any argument is either binding, that it is relevant for the resolution of a legal dispute, or that it is not binding, thus irrelevant for legal argumentation. The new approach to legal argumentation views the same phenomena as parts of a continuum, where, for instance, formal bindingness is but one of many concepts having various degrees of relevance in the legal

80

Wieacker, op.cit. note 16, 411-412.

81

C. Varga, Codification as a Socio-Historical Phenomenon (Akadémiai Kiadó, Budapest, 1991), 123; (this is basically the translation of an older work by Varga written in the late 1970s).

82

On this, see Hesselink, op.cit. note 74.

83

Cf. P.S. Atiyah, “From Principles to Pragmatism: Changes in the Function of the Judicial Process and the Law”, 65 Iowa Law Review (1980), 1249; and J. Stone, “From Principles to Principles”, 97 The Law Quarterly Review (1981), 224.

84

L.M. Friedman, “Courts Over Time: A Survey of Theories and Research”, in: K. Boyum and L. Mather (eds.), Empirical Theories about Courts (Longman, New York, NY, 1983), 46. Although English courts were traditionally more rule-oriented and less pragmatic (see, generally, P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Clarendon Press, Oxford, 1987), this trend is visible in relation to them as well (see Atiyah’s article quoted in the preceding note).

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discourse.85 While the ‘hard’ conceptions of law, deeply intertwined with textualist approaches, view formal arguments as the only appropriate form of legal rhetoric and judicial discourse, alternative ‘softer’ approaches give legal discourse a twofold face, based on both formalist and substantive arguments.86 An alternative approach to law emphasizes an obvious fact, although a fact not admitted by the ideology of bound judicial decisionmaking: “Reasoning in gaps of the authoritative material, can, by definition, not be determined solely by what is authoritative.”87 That is why the acceptance of the new approach does not signify the destruction of law as a rational system; rather, it indicates the adoption of a broader conception of the legal system and its sources. The prevailing approach in contemporary jurisprudence—unlike either the ideology of bound decision-making or free decision-making— distinguishes between hard and easy cases, although it is admitted that the dividing line between these two categories is vague and blurred. It seems now to be generally recognized that—while the formalistic view is necessary in order to secure legal certainty and the rule of law—the nonformalist approach (viewing law in its broader sense) is highly desirable in order for judges to have available satisfactory argumentation in hard cases and thus secure the rule of law, which is not exclusively a formal conception.88 Easy cases, in this view, yield a solution that is non-controversial within the legal community and reached by methods formally recognized by the legal system (say by reference to the text, its ‘logic’, the system, a non-controversial legislative purpose, or legislative history). In contrast, a hard case (i.e., a case presenting a vague legal provision, conflicting rules, or 85

A wonderful illustration of this approach is given in: D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Dartmouth Publishing, Aldershot, UK, 1997).

86

The German theorist, Robert Alexy, compares formalist and non-formalist arguments in the following way: “[Legal argumentation] participates, on the one hand, deeply in the authoritative, institutional, or real character of law. This can be seen from the role of authoritative reasons in legal arguments and the institutional setting of legal reasoning which leads, in the last instance, not only to suggestions and proposals but to definitive decisions of courts, enforced, if necessary, by power. On the other hand, legal reasoning remains deeply connected with what can be called the free, discursive, or ideal side of law. […] An adequate theory of legal argumentation must cover the authoritative, institutional, or real side of legal reasoning as well as its free, discursive, or ideal dimension.” R. Alexy, “The Special Case Thesis”, 12 Ratio Juris (1999), 374, at 375.

87

Ibid.

88

This point is best explained by Ronald Dworkin, who wrote that “[t]he rule of law is a nobler ideal than the rule of legal texts”. R. Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge, MA, 1999), 338.

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a prima facie meaning that would result in an undesirable outcome) cannot be solved in this simple, non-controversial fashion and, rather, demands the application of substantive evaluations.89 The judge who espouses moderate anti-formalism (or say, rather, moderate formalism) —while being aware of the existence of easy cases which can, and should, be settled on formalist grounds90—appreciates the high level of discretion enjoyed in hard cases. The judge would understand this discretion as opening the door and allowing her to find the best solution for the case from among a plethora of solutions offered by the legal system. Judicial anti-formalism is compatible with the idea of the one-right-thesis. However, where there is adherence to the one-right-thesis, the judge at least implicitly admits that there is no objective reading of the law, and that which she is attempting to attain through judicial argumentation is a reading of the law best fitting the legal system in that individual’s necessarily subjective judgment.91

89

My conception of the distinction between easy and hard cases more or less follows that of the late Aleksander Peczenik. See A. Peczenik, On Law and Reason (Kluwer Academic Publishers, Dordrecht, The Netherlands, 1989) which is an extended version of his Rätten och förnuftet (Norstedt, Stockholm, 1986)), 19ff. Cf. H.L.A. Hart, The Concept of Law (Clarendon Press, Oxford, 1998), 124-126; J. Wróblewski, “Statutory Interpretation in Poland”, in: D.N. MacCormick and R.S. Summers (eds.), Interpreting Statutes: A Comparative Study (Dartmouth Publishing, Aldershot, UK, 1991), 258ff.; J. Wróblewski, “Legal Language and Legal Interpretation”, 4 Law and Philosophy (1985), 239, at 249; R. Dworkin, A Matter of Principle (Clarendon Press, Oxford, 1986), 74; Alexy, op.cit. note 13, 8ff.; D.N. MacCormick, Legal Reasoning and Legal Theory (Oxford University Press, Oxford, 1994), 197; and Bengoetxea, op.cit. note 48, 183-195.

90

We should be aware of distinction, outlined by Martin Stone, between ‘overly rulebound decision making’ (ORBD) and ‘easy case formalism’ (ECF). The critique of ORBD is the critique of a particular legal practice: it recommends that judges “should not be overly rule-bound, but should decide in ways that are sensitive to the aims and needs the law is meant to serve”. In contrast, ECF maintains the concept that judges sometimes can apply law following general interpretational guidelines (a ‘core’ meaning of the rule) finding the one right answer; in other (hard) cases, such a deductive step is not possible. That is why critics of ECF reject the very idea that judges can ever be bound by rules. If we reject ECF, we reject the very possibility that there can be an easy case. Stone, op.cit. note 42, 172-173.

91

For instance, Ronald Dworkin’s often misunderstood ‘one-right-thesis’ asserts that law does not yield ‘objectively’ right answers to questions of law. That is why moral skepticism and law’s indeterminacy are compatible with attempts by judges to find the one correct solution to a case. Cf. R. Dworkin, Law’s Empire (Harvard University Press, Cambridge, MA, 1986), viii-ix, 313-314. Dworkin’s one-right-thesis is, of course, essentially anti-formalist.

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I.4. Western European Judicial Practice The ideology of bound judicial decision-making, in its pure form, has disappeared from the mainstream of Western European legal scholarship— even though it still rhetorically governs some very visible legal discourses, such as the style of writing judicial opinions or the pedagogical methods at some Continental law faculties. The interaction of these discourses with less formal and more substance-oriented discourses seems to represent, in many respects, the contemporary European legal culture. This plurality of visible and less visible discourses, within Western European legal culture, hampers the ability of post-Communist lawyers rightly to perceive what is really going on in the European legal discourse. The primary example of multiple legal discourses is to be found in France, as presented by Lasser.92 The extremely short, deductive style of judicial argumentation used in France reflects the values of the ideology of bound judicial decision-making. However, according to Lasser, the most visible French judicial discourse—as it exemplified in the official selfportrait of extremely short written opinions of the French magistrates—is only the tip of the iceberg. What is much less well known is the unofficial portraits of judicial activity as produced by mainstream French academic theory and the hidden discourse of the French civil judiciary. The French judicial system and legal thought, in fact, have been able to internalize and accommodate the anti-formalist critique and, at the same time, to maintain its formalist façade, immediately accessible to outsiders. In contrast with the appearance of French judicial opinions, French legal scholarship—while not abandoning generally the formalistic position—openly acknowledges the goal-oriented role of the judge. And in contrast with judicial opinions, the unpublished judicial discourse of the advocates-general—who argue cases before the court on behalf of the public welfare, societal interest, etc.—clearly reveals the open and argumentative nature of law, as well as conflicting judicial policies.93 92

Lasser, Judicial Deliberations, op.cit. note 52.

93

Ibid., 60-61: “According to this official portrait, the French judge is nothing more than a passive agent of the legislature, mechanically generating required judicial decisions by plugging fact scenarios into the all-encompassing matrix of the Civil Code. […] On the other hand, this official French judicial portrait hardly represents the totality of the French civil judicial system. There exists, hidden within the French judiciary, an entire other argumentative universe in which French magistrats argue not in terms of formalist application of codified law, but in terms of the social repercussions of their past, present, and future judicial decisions and of their concomitant normative rules of jurisprudence. In this hermeneutic discursive sphere, French magistrats argue in the incredibly open-ended and unstructured terms of ‘equity’ and ‘justice’ […].”

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The result of this situation is a certain symbiosis of both portraits of the French judiciary and of legal argumentation: “The bifurcation of French judicial discourse into distinct spheres thus represents the French judicial system’s mediation between, on the one hand, France’s historically and culturally determined distrust of the judiciary, and on the other, the post-Gény impulse towards socially responsible judicial hermeneutics. Both directives remain simultaneously operative […] while the French civil judicial system maintains two distinct modes of reading, the two are completely interdependent, constantly leaking into each other and at no point pure.”94

Another important input—which influences the structure of the invisible part of the French judicial system—is the highly developed and sophisticated documentation and research service at French high courts, which has recently substantially improved its electronic data relating to judicial decision-making. As Hans Baade put it, the French Supreme Court “appears to be able to preserve the high quality of its jurisprudence despite the tremendous growth of its case load through terse judgments based on largely unpublished detailed memoranda of the reporting judge, assisted by a highly developed judicial documentation and research service.”95

Similarly, in Germany—the main ideological source of law and legal doctrines for Central Europeans—the inflexible, dogmatic and conceptual legal scholarship that had traditionally prevailed there was rejected several decades ago.96 In contrast to France, however, the visible judicial discourse in Germany has become more open, substantively-oriented and clear, while still retaining important Continental formalist features. The German supreme courts now openly acknowledge their creative function and often make (and change) law overtly. This openly activist approach toward the law stands in sharp contrast to that of most of their predecessors, especially before World War I.97 In its form, German judicial argumentation is heavily oriented toward legal scholarship, which—apart 94

Lasser, “Judicial (Self-)Portraits”, op.cit. note 52, 1325, 1403, 1407. Cf. Lasser, Judicial Deliberations, op.cit. note 52: “In short, the French judicial system segregates its two discourses into distinct argumentative spheres. In the sphere of the official judicial decision operates the discourse of the formal, grammatical application of the codified law. In the unofficial sphere of the conclusions and rapports operates the discourse of the hermeneutic construction of socially meaningful judicial solutions […].”

95

Baade, op.cit. note 32, 533-554, at 550.

96

Classical critique of the early post-war era might be found in the works of Josef Esser. Cf. J. Esser, Vorverständnis und Methodenwahl in der Rechtsfindung (Athenäum, Frankfurt am Main, 1970).

97

Wieacker, op.cit. note 16, 420-422. For more detail on German judicial style, see R. Alexy and R. Dreier, “Precedent in the Federal Republic of Germany”, in: MacCormick and Summers, op.cit. note 85, 17ff.

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from precedents—is, at least formally, the main source of the German courts’ perception of law.98 Franz Wieacker evaluated the change in judicial style and reasoning in this way: “The Bundesgerichtshof has been more acutely aware of its social role than any previous court, except those of revolutionary origin, and has been able to adjust its decisions to the new conception of the social state under a rule of law and fit them to the mandates of the Basic Law. Their stronger sense of their role made them less vulnerable than the positivist judges to manipulation by powerful interests, and their commitment to developing the law openly allowed them to abandon conceptual structures which had become outdated or unconvincing.”99

II. The Socialist Judge in the 1950s: A Builder of Communism Central European systems received the Stalinist dogma of law after World War II. We might delineate two distinct phases in the development of the judicial self-perception of Communist judges. First was the anti-formalist era of the late 1940s and 1950s, the era which might be associated with judicial activism. It favored the active conception of free judicial decision-making, and the judge was able decide in conflict with the law, if her decision was in favor of the principles and goals of the Socialist state. After a transitional era of the 1960s, the second phase—above all, in the 1970s and 1980s—was formalist. Formalism and philosophy of judicial passivism—to some extent, a reaction to the excesses of the first activist phase—presumed that a judge was strictly bound by the law, save few exceptions when it was clearly politically undesirable. The final result of this development was the creation of a specific Socialist variety of textual positivism. II.1. The Soviet Idea of Law II.1.1. Antecedents: Anti-Positivism Marxist doctrine is a philosophy of history, economics and politics which claims to be the only accurate scientific description of the world and the 98

Cf. H. Kötz, “Scholarship and the Courts: A Comparative Survey”, in: D.S. Clark (ed.), Comparative and Private International Law: Essays in Honor of John Henry Merryman (Duncker and Humblot, Berlin, 1990), 183ff.

99

Wieacker, op.cit. note 16, 421. Wieacker is talking also about the downside of this methodological shift. It presents dangers for legal certainty and the rational concept of law: “While the positivist judge could be blamed for adhering to his systematic and conceptual traditions and institutions at the expense of realistic solutions, the courts today are more open to the reproach that they are dispensing pure equity in an unprincipled and empirical manner.” Ibid., 430.

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objective rules of historical development. In its origins in the nineteenth century, Marxism might be described as a critical social theory (“Marxism was by its very nature critical: it was against, not in favour”100), and its philosophy of law as a radical anti-positivism. It underwent a dramatic change in its social function after becoming the ideology of the newly established Socialist State.101 Meanwhile, Western Marxism took a different path; mutual interactions were quite low between the more or less rigid Marxist theory prevalent in the Soviet Union and its satellites, on the one hand, and the far more flexible and, in the course of time, much more sophisticated Western theories, on the other.102 According to Marxist doctrines, the state was expected to disappear with the progressive establishment of the Communist society. These predictions were outlined by Friedrich Engels, who was the first to make the claim that the state will ‘wither away’.103 The Founding Father of the Soviet 100

W. Sadurski, “Marxism and Legal Positivism”, in: D.J. Galligan (ed.), Essays in Legal Theory (Melbourne University Press, Victoria, 1984), 189. Similarly, Kelsen who had observed that Marxian theorists were engaged in a political critique of capitalism and the class society but had not elaborated a comprehensive system of the regulation of behavior in the classless society (simply because they expected it would come about in the rather remote future). See H. Kelsen, The Communist Theory of Law (Frederick A. Praeger, New York, NY, 1955), 33.

101

Sadurski, op.cit. note 100, 189, 198, passim.

102

Western Marxists have emphasized that it is questionable whether the Soviet Union and its allies could, by their very nature, be classified as Marxist states. See H. Collins, Marxism and Law (Clarendon Press, Oxford, 1982), 2, 15.

103

The crucial passage reads as follows: “As soon as there is no longer any social class to be held in subjection; as soon as class rule, and the individual struggle for existence based upon our present anarchy in production, with the collisions and excesses arising from these, are removed, nothing more remains to be repressed, and a special repressive force, a state, is no longer necessary. The first act by virtue of which the state really constitutes itself the representative of the whole of society—the taking possession of the means of production in the name of society—this is, at the same time, its last independent act as a state. State interference in social relations becomes, in one domain after another, superfluous, and then dies out of itself; the government of persons is replaced by the administration of things, and by the conduct of processes of production. The state is not ‘abolished’. It dies out.” (As translated by Emile Burns from the 1894 edition of Frederick Engels, AntiDühring. Herr Eugen Dühring’s Revolution in Science, Part III, Chapter 2 (Progress Publishers, Moscow, 1947), reproduced at , emphasis in the original.) The last sentence is often translated as: “It withers away”. See M. Cain and A. Hunt, Marx and Engels on Law (Academic Press, London, New York, NY, San Francisco, CA, 1979), 164 (emphasis in the original); and J. Campbell, An Analysis of Law in the Marxist Tradition. Studies in Political Science, Vol.12 (Edwin Mellen Press, Lewiston, NY, 2003), 36-37 (at

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Revolutionary State, Vladimir Il’ich Lenin, himself a lawyer by education, followed these theses. Lenin had to face a conceptual problem of the state after a successful Communist revolution, which had not yet become a Communist society—although it had discarded attributes of a capitalist state. In Lenin’s view, written several months before the successful 1917 October Revolution, a state after the successful Socialist revolution was not supposed to be a state as commonly understood. It was the state on its transition towards its withering away. Unlike the capitalist state, which is based on suppression of the majority by minority, the Socialist state is its entire opposite—the suppression of the minority of former exploiters by majority of former ‘wage slaves’. “This is compatible with the diffusion of democracy among such an overwhelming majority of population that the need for special machinery of suppression will begin to disappear. The exploiters are, naturally, unable to suppress the people without a most complex machinery for performing this task; but the people can suppress the exploiters even with very simple ‘machinery’, almost without any ‘machinery’, without any special apparatus, by the simple organisation of the armed masses [...].”104

Subsequently, a classless society of Communism—without the oppressors and without the oppressed—would render the state absolutely unnecessary. It was a logical conclusion of the Marxist opinion that the sole purpose of the state was to protect the ruling class. Without the oppressed people, there was no ruling class and no need to maintain the state’s oppressive structures and its law—at least if we understand the law through its oppressive class nature and its necessary connection to sanctions imposed by the state. The new system will thus replace law by “the administration of things” and disputes will be decided by arbitrators, as Engels had put it.105 Similarly, Lenin believed that “people will gradually become accustomed to the observance of the elementary rules of social life that have been known for centuries and repeated for thousands of years in all school books”.106 note 85). Cf. critically: H. Kelsen, The Political Theory of Bolshevism. A Critical Analysis (University of California Press, Berkeley/Los Angeles, CA, 1949), 11, 24: “That the men who actually control the coercive machinery and are in position to use it for other purposes than to establish Socialism, will voluntarily give up the power they possess, is the great miracle of the Marxian belief.” For a recent view on this claim, see Collins, op.cit. note 102, 100ff. 104

V.I. Lenin, State and Revolution, Marxist Teaching about the Theory of the State and the Tasks of the Proletariat in the Revolution (International Publishers, New York, NY, 1935), 74-75 (emphasis in the original).

105

See supra note 103.

106

Lenin, op.cit. note 104, 74 (emphasis in the original). Cf. Kelsen, op.cit. note 103, 35, asking what these miraculous ‘elementary rules’ are. In his next book (from 1955), Kelsen emphasizes that the reasons for unlawful behavior are by no means attributable to material inequality of the class society. “The prediction of a stateless and lawless society of perfect justice is a utopian prophecy like the Messianic Kingdom of God, the paradise of the future.” Kelsen, op.cit. note 100, 38.

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In this sense, the withering away of the state brings also the replacement of one complex normative system (law) by another normative system of a very different nature,107 much less complicated and arising out of the core of the new Communist society. The new normative system of a Communist society in the future would be applied more or less spontaneously, “community-moral sanctions will become an alternative to the outgoing legal sanctions and, in due course, replace them altogether”.108 The judicial and political power of the state are not abolished; they “are absorbed […] by the populace itself ”.109 For instance, Lenin predicted in 1917 that there would be no place for crimes in a classless, stateless Communist society: “We […] do not in the least deny the possibility and inevitability of excesses on the part of individual persons, nor the need to suppress such excesses. But, in the first place, no special machinery, no special apparatus of repression is needed for this; this will be done by the armed people itself, as simply and as readily as any crowd of civilised people, even in modern society, parts a pair of combatants or does not allow a woman to be outraged. And, secondly, we know that the fundamental social cause of excesses which consist in violating the rules of social life is the exploitation of the masses, their want and their poverty. With the removal of this chief cause, excesses will inevitably begin to ‘wither away’. We do not know how quickly and in what succession, but we know that they will wither away. With their withering away, the state will also wither away.”110

The Soviet legal school of the 1920s (Stuchka, Reisner, Pashukanis, etc.) followed Engels’ and Lenin’s thesis and further developed their claim about the soon-to-be end of law in Socialism, a transitional society heading for Communism. The scholars of the first Soviet decade had developed a plethora of Marxist theories on the interaction between the state and law in a Socialist society and the inevitable end of the law in the Soviet state. Soviet law was supposed to be ‘bourgeois law without the bourgeoisie’, destined to an early disappearance. Pashukanis, the most prestigious So107

See Collins, op.cit. note 102, 106ff. (emphasizing that the law, even in the view of Marxist theorists, shall continue to exist, even though under a different name and with a fundamentally different meaning, since in the classless society it would lose its oppressive nature and become rather a system of managerial rules for the classless society). Similarly, V. Knapp, Filosofické problémy socialistického práva [Philosophical Problems of Socialist Law] (Academia, Praha, 1967), 58ff. (emphasizing that, in the Marxist view, state sanction is a necessary criterion of law). Cf. also Campbell, op.cit. note 103, 38ff.

108

V.A. Tumanov, Contemporary Bourgeois Legal Thought. A Marxist Evaluation of the Basic Concepts (Progress Publishers, Moscow, J. Gibbons transl. 1974), 107 (originally issued in Russian as Tumanov’s PhD dissertation in 1969 and published two years later as: Burzhuaznaia pravovaia ideologiia: K kritike uchenii o prave (Izdatel’stvo Nauka, Moskva, 1971)).

109

Campbell, op.cit. note 103, 40.

110

Lenin, op.cit. note 104, 75 (emphasis in the original).

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viet legal scholar of the 1920s, professed: “We have no need for any sort of juridical system of proletarian law.”111 The early anti-positivist Soviet legal doctrine claimed its radical break with pre-revolutionary Russian law. The case of Soviet Russia is one of very few examples of complete legal discontinuity during the change of regime. In the first phase of ‘war Communism’ during the Russian civil war, the old law was abolished and the revolutionary law based on ‘class revolutionary consciousness’112 was applied. The old judicial structure was entirely eradicated and replaced by new informal revolutionary tribunals (people’s courts).113 In fact, it was a condition of legal anarchy, caused by the nonexistence of a proper judicial structure and the Civil War as well as by the absence of established rules.114 After the end of the civil war— upon Lenin’s orders—new laws and codes were prepared, which were intellectually influenced by the German codes of that era.115 II.1.2. Towards Stalinist Law: A New Concept of Law and Its Inner Contradiction When the Soviet Union stabilized and strengthened—by its totalitarian and oppressive features—the idealist claims about the early end of the Soviet state and its law became dangerous for the new rulers. That these claims were faithful to Marxism116 did not disable the new Stalinist faction from 111

E.B. Pashukanis, “The Soviet State and the Revolution in Law” (originally in Russian in 1930), in: J.N. Hazard (ed.), Soviet Legal Philosophy (Harvard University Press, Cambridge, MA, H.W. Babb transl. 1951), 279. In more detail, see P. Beirne and R. Sharlet, Pashukanis: Selected Writings on Marxism and Law (Academic Press, London, 1980).

112

This concept was a major invention of Mikhail Reisner, then a Vice-Commissar for Justice of Soviet Russia. See, generally, Hazard’s introduction in Soviet Legal Philosophy, ibid. Cf. A. Sajó, “Social Planning and the Law: Contribution to the History of Law”, 26 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1984), 299-316, at 304.

113

Campbell, op.cit. note 103, 77ff.

114

A classic volume on this subject is John Hazard’s 1960 monograph Settling Disputes in Soviet Society, op.cit. note 34.

115

K. Zweigert and H. Kötz, An Introduction to Comparative Law, Vol.1. The Framework (North-Holland Publishing, Amsterdam, 1st ed., T. Weir transl. 1977), 309 (noting that the structure and some of the content of the 1922 Civil Code of the Russian Soviet Federative Socialist Republic derived from the pre-revolutionary drafts based on the German Civil Code of 1900, although the Russian Code was much simpler and shorter); and I.S. Markovits, “Civil Law in East Germany: Its Development and Relation to Soviet Legal History and Ideology”, 78 Yale L.J. (1968-1969), 1, 23ff.

116

Cf. the opinions of Western Marxists, e.g., Collins, op.cit. note 102, 15, noting that “self-proclaimed Communist countries have vast legal systems”, but that this “cannot in any way negate the theory about the withering away of law. Whatever the

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eliminating their old colleagues of the 1920s. Since during Stalinism even doctrinal differences meant high treason, Stalin accused the old scholars of sharing the deviations of Trotsky and Bukharin. Most of the members of the 1920s school were either executed or merely ‘disappeared’ in the GULags by the end of the 1930s.117 A new Soviet legal leader—Andrei Vyshinsky, responding to Stalin’s claim118—refused the thesis that law was supposed to disappear in Socialism.119 It would do so in Communism when law was going to wither away, when the people will have become accustomed to following the basic rules without any need for enforcement. During the current phase of the development, law fulfilled the vital task of preserving order and the Communist power. Although the school of the 1920s noted that the teachings of Marx, Engels and Lenin had envisaged no precise idea of Socialist law, the new Stalinist school claimed the opposite.120 In the view of the Stalinist school— which was followed in Central Europe after World War II—Socialist law .

true nature of such regimes, they are plainly far removed from the conception of Communism which the classic theorists of Marxism had in mind. If anything the presence of laws in those societies proves that they are not Communist rather than disposing of the Marxist theory that law is unnecessary.” 117

For a summary of the development of the Soviet legal thinking until the beginning of the 1950s, see especially Hazard’s introduction in: Soviet Legal Philosophy, op.cit. note 111. Late Soviet legal scholarship adopted a more moderate position on the early Soviet legal scholars; see L.S. Jawitsch, The General Theory of Law (Progress Publishers, Moscow, H. Campbell Creighton, transl. 1981), 111 (in Russian: Obshchaia teoriia prava (Izdatel’stvo Leningradskogo Universiteta, Leningrad, 1976) who noted that Stuchka and Pashukanis “did much to establish the Soviet general theory of law, but that they did not pay enough attention to law’s essence of the first order in their conception of legal form […]”.

118

J.V. Stalin, “The Right Deviation in the Communist Party of Bolsheviks (an address delivered in 1929)”, in: Soviet Legal Philosophy, op.cit. note 111, 227. Stalin made his thesis clear in a speech of 1939. He reaffirmed his support for Engel’s position on the inevitable withering away of the state but asserted that this process was possible only under the condition that Socialism “has already triumphed in all—or in most—of the countries, that a Socialist encirclement has actually taken the place of a capitalist encirclement, that the menace of attack from without no longer exists, and that there is no further need of strengthening the army and the state”. J.V. Stalin, “Report to the XVIII Party Congress”, ibid., 345.

119

See A.Y. Vyshinsky, “The Fundamental Tasks of the Science of Soviet Socialist Law (an address made in 1938)”, in: Soviet Legal Philosophy, op.cit. note 111, 303ff., at 330-341 passim.

120

P. Yudin, “Socialism and Law”, in: Soviet Legal Philosophy, ibid., 281 at 289: “For these folk, you see, the greatest productions of Marx, Engels, Lenin, and Stalin failed to furnish the theoretical foundations of the legal order of the new society in any—even the slightest—degree.”

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was substantially different from bourgeois law. Although the form of law might be similar, this similarity—for instance in the textual provision of the code—did not apply to the substance. “The dictatorship of the proletariat is a state of a new type, and the law created by that state is law of a new type; Soviet, democratic law which protects the interests of each and every one of the majority of the people: toilers.”121 “Of necessity, Soviet legislation still reflects certain survivals of the old legislation without ceasing thereby to be Socialist legislation.”122 This was the beginning of the claim that the so-called Socialist law constitutes a separate and autonomous legal family. This new Stalinist conception of law suffered from inner contradictions. On the one hand, facing the atmosphere of the building of Socialism, the judicial application of law was clearly activist and anti-formalist. On the other hand, the Stalinist theory of law developed clear textualist, positivist, and formalist features. Writing in the 1970s, the Hungarian scholar Imre Szabó—while also critically evaluating his own earlier theories—observed that the Stalinist theory of law was very close to a sort of conceptually simplified normativism.123 Its conception of law was state-centered; it identified law entirely with the state. To qualify as ‘genuine’, a law had to be sanctioned by the state. The object of the theoretical research targeted almost exclusively the ‘norm’, although not a ‘living’ norm that actually operates in the society; rather, a norm as identified with the text of a statute. In short, Stalinist Socialism produced a simplified ‘command theory of law’. Although these trends varied after Stalin’s death, the basic theoretical presupposition, “the command approach to law and its inherent denial of legitimate conflict (and thus a need for individual counterbalances to the state)”,124 remained a distinctive feature of the Socialist ‘science of law’ throughout the era of Socialism in Central Europe. However, during the Stalinist period, anti-formalists in law and the activist application of law prevailed. 121

Ibid., 290-291; see, also, 293-296 passim.

122

Ibid., 295.

123

I. Szabó, “The Notion of Law”, 18 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1976), 263-272, at 267; id., “The Socialist Conception of Law”, in: K. Zweigert and U. Drobnig (eds.), International Encyclopedia of Comparative Law, Vol.II, The Legal Systems of the World. Their Comparison and Unification, Chapter 1, “The Different Conceptions of the Law” (Mouton, The Hague, J.C.B. Mohr, Tübingen, 1975), 49, 51-52. Cf. K. Kulcsár, “Politics and Law-Making in Central-East-Europe”, in: Z. Péteri (ed.), Legal Theory. Comparative Law. Studies in Honour of Professor Imre Szabó (Akadémiai Kiadó, Budapest, 1984), 179ff.

124

I.S. Markovits, “Socialist vs. Bourgeois Rights – An East-West German Comparison”, 45 U.Chi. L. Rev. (1977-1978), 612, 631.

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II.1.3. The Origins of Stalinist Judicial Activism Stalinism counted on persons being activists, always ready to contribute to the development of the Socialist society. It was the revolutionary era of the building of Socialism, the time of a daily fight against the enemies of Socialism. It would have been strange if lawyers—although they were rather pariahs than top-ranking builders of Socialism—had stood apart from that battle. As the leading Czechoslovak lawyer, Viktor Knapp, emphasized in commemorating Stalin shortly after his death in 1953: “The aim of scholarship does not lie in scholastic, dogmatic and formalistic reasoning, fruitless as the biblical fig-tree, as academic Vyshinsky once remarked about bourgeois legal scholarship; the place of scholarship is in the front battle line, the scholar’s study is the forge where weapons are made for the fight of the working class. Although these weapons are made in the workroom of the legal scholar, his place is also in the front battle line. However, in that front battle line other legal practitioners, lawyers in the judiciary, in the administration and in the economic sector also fight, they interpret our socialist law and make it a reality.”125

That is why both criminal and civil adjudication in Stalinist Soviet Union took activist lawyers for granted. In light of the centralist ambition of the Soviet state, it was—above all—the Soviet law-maker (legislature or executive power) which was expected to contribute to Socialist development; however, the Soviet judges were trusted as well. That is why they possessed substantial discretion even in defining new crimes: the first Socialist Criminal Code of Soviet Russia proclaimed the judicial competence to punish “any acts deemed socially dangerous even if they were not so defined by the code”.126 In addition, the Soviet judiciary functioned as an instrument of the Sovietization of newly acquired territories.127 Although Stalin himself never wrote on law specifically, theoretical justification for the activist role of Socialist judges in the early 1950s might be found, for instance, in Stalin’s teaching on linguistics. In a series of articles published in 1950 in the Soviet Communist Party daily, Pravda, Stalin gave his explanation of the relations between the base and superstructure, the former being the total sum of societal relations of production which constitutes the real foundation of the society, upon 125

V. Knapp, Význam Stalinových statí “Ekonomické problémy socialismu v SSSR” pro právní vědu [The Importance for Legal Science of Stalin’s Articles “The Economic Problems of Socialism in the USSR”] (Orbis, Praha, 1953), 6.

126

Art.10 of the 1922 RSFSR Criminal Code, quoted in: J.N. Hazard, Communists and Their Law. A Search for the Common Core of the Legal Systems of the Marxian Socialist States (The University of Chicago Press, Chicago, IL, London, 1969), 72. Such an open deviation from the maxim, ‘Nullum crimen sine lege’, has never been openly followed in any Central European country.

127

Y. Fedynskyj, “Sovietization of an Occupied Area through the Medium of the Courts (Northern Bukovina)”, 12 The American Slavic and East European Review (1953), 44.

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which rises a legal and political superstructure.128 Stalin claimed that not only did the base determine the content of the superstructure but, also, the superstructure might influence the base.129 In Marxist rhetoric, that meant that the elements of the superstructure, such as law, were able to affect and form the base, i.e., the society and its relations. “The superstructure”, explained Stalin, “is created by the base precisely in order to serve it, to actively help it to take shape and consolidate itself, to actively fight for the elimination of the old, moribund base together with its old superstructure.”130 His several articles, published in Pravda, severely challenged ‘textualists and Talmudists’ of Marxism. Although Stalin did not mention law in particular, his thesis served very well to justify an active role by the lawyers in the society. Stalin’s lead was followed in Central Europe.131 Viewed from the perspective of a crude instrumental analysis, the pre-Socialist textual 128

On that issue Marx wrote the following in the preface to his work, A Contribution to the Critique of Political Economy (1859): “In the social production of their life, men enter into definite relations that are indispensable and independent of their will, relations of production which correspond to a definite stage of development of their material productive forces. The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which rises a legal and political superstructure and to which correspond definite forms of social consciousness.” Published (in English) by Progress Publishers, Moscow, quoted according to (visited on 21 May 2009).

129

Originally published in the 20 June, 4 July, and 2 August 1950 issues of Pravda; (in English) J. V. Stalin, Marxism and Problems of Linguistics (Foreign Languages Publishing House, Moscow, 1951), reproduced at (visited on 21 May 2009). “[T]he superstructure is a product of the base, but this by no means implies that it merely reflects the base, that it is passive, neutral, indifferent to the fate of its base, to the fate of the classes, to the character of the system. On the contrary, having come into being, it becomes an exceedingly active force, actively assisting its base to take shape and consolidate itself, and doing its utmost to help the new system to finish off and eliminate the old base and the old classes.” (my emphasis) There is, of course, nothing surprising in this, as it is in basic accord with the tenets of Marxism (cf. Campbell, op. cit. note 103, 28-29, analyzing the original doctrines of Marx and Engels).

130

Stalin, op.cit. note 129.

131

Cf. in this regard: on Poland, Hazard, op.cit. note 126, 82ff.; and on East Germany, Markovits, op.cit. note 115, id., “Justice in Lüritz”, 50 Am. J. Comp. L. (2002), 819, 842. In the region, Stalin’s teaching was discussed in many conferences; cf., for instance,

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positivism had to be rejected: Marxist lawyers claimed that bourgeois legal thinking—hidden behind the veil of formalism—in fact manipulated the law in order to assure the interests of the ruling class.132 Therefore, Stalinist scholars claimed that “any legal principle, any law, any legal institution always serves and shall serve the interests of the ruling class”.133 Consequently, in the new Socialist state its law should serve the interests of its ruling class, i.e., toilers ‘led’ by the Communist Party. Whereas in the field of criminal law major injustices were often perpetrated in secret, the civil law provided ample opportunity for openly acknowledged social engineering. As the Sovietized states of Central Europe continued to apply their pre-Socialist laws, a wide range of judicial discretion was inevitable in the areas of private law. In Poland, for instance, the law instructed the judges to interpret the law in light of the fundamental principles of the structure and the goals of the People’s State. Further, rights were not to be exercised in a manner violating “the principles of Socialist communal living”.134 Similarly, in Czechoslovakia, the 1948 Constitution prescribed judges to interpret and apply the law consistently with the Constitution.135 The model of judicial decision-making that emerged was clearly anti-formalist, anti-dogmatic, based on substantive reasons, with clear indications of underlying policies and purposes. Conceptually, it bore similarities to the ideology of free judicial decision-making, in that the substantive correctness of the legal solution was preferred over adherence to the standard rules of legal interpretation. By correctness of the judicial decision was meant correspondence to the ideals and aims of Marxist doctrine and the Communist Party’s policies rather than strict adherence to the letter of the law. How Stalinist judicial activism was carried out in J. Bartuška, “Základna a nadstavba v práci J.V. Stalina ‘O Marxismu v jazykovědě’ – závěry pro otázky státu a práva” [Base and Superstructure in J.V. Stalin’s Work, ‘Marxism and the Problems of Linguistics’ – Conclusions for Issues of State and Law], 90 Právník (1951), 72. 132

Ibid., 75, arguing that “bourgeois state and law serves the bourgeoisie at the expense of the working class. Socialist state and law serves the needs of the working class and trusting working masses at the expense of the bourgeoisie”.

133

Ibid.

134

Dziennik Ustaw [Official Gazette] (1950) No.34 item 311, quoted in: Hazard, op.cit. note 126, 82. See, also, the 1922 RSFSR Civil Code, Art.1: “Civil-law rights are protected by law with the exception of those instances when they are exercised in violation of their social-economic designation [naznachenie].” Reproduced in: O.I. Chistiakova (ed.), Khrestomatiia po istorii otechestvennogo gosudarstva i prava. 1917-1991 gg. (Zertsalo, Moskva, 1997).

135

Art.171 para. 3 of the Constitution of 9 May 1948.

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practice in both criminal and civil law is described in the following pages, with particular emphasis on Czechoslovakia. II.2. The Aftermath of the Communist Takeover and the Beginnings of the Transformation of Judicial Rhetoric The Austrian legal tradition produced judges who were not supposed to be mechanical machines. However, the legal culture considered as a whole was legalistic and formalistic, which is not surprising considering the basic features of the then existing Continental legal culture. Judges understood themselves as servants to the law, meaning basically the written law as reflected in acts of parliament. However, in cases which—due to an extreme situation—merited a creative approach, they considered themselves relatively independent agents trying to find a just solution to the given case. One might expect that if the Central European region had not ended up in the zone of Soviet influence after World War II, its legal development would have followed the German or Austrian path. However, after 1945, a different trend emerged in the region. The new Czechoslovak case reporter emphasized the anti-formalism of the new Socialist judiciary in its first issue in 1949. Its authors claimed that new Socialist judiciary would be faster and more efficient and always able to find the ‘real’ truth. Last but not least, it would not rely on old bourgeois formalism but, rather, on the concept of ‘popular justice’.136 The organized challenge to the existing formalist judicial reasoning started from the top, from the Supreme Court and the State Court (a special tribunal created for political crimes), and continued with the gradual turnover of the ordinary judges and their education in Marxism. The first activist decision appeared in the case reporter’s first volume in the fall of 1949, i.e., more than one year after the Communist take-over in Czechoslovakia. The style and arguments of the decision differ radically from that of the older case law. In this decision, the Czechoslovak Supreme Court affirmed the judgment of the State Court convicting a Catholic priest of treason and imposing an eight-year sentence of imprisonment. The priest allegedly refused to administer last rites to an old woman because she was a member of the Communist Party.137 The Supreme Court reiterated the State Court’s extensive reasoning, which described the criminal role of both the Holy See and the Catholic Church in the world and throughout Czech history—as well as their criminal character in the 136

It is found, in fact, on the very first page of the new case reporter, Sbírka rozhodnutí československých soudů [Collection of Decisions of Czechoslovak Courts] (hereinafter “Sbírka rozhodnutí”) (1949), 1.

137

Decision of the Czechslovak Supreme Court of 30 September 1949, Sbírka rozhodnutí (1949) No.51.

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new people’s democracies—and contained further arguments written in a similar manner.138 In the following case, I intend to show that this new attitude—at the very least—gained the approval of a considerable number from among the ranks of Central European judges, and that a new wave of legal reasoning was clear, noticeable and supported by the new government. II.2.1. Stalinist Decentralized Constitutional Review: A Short-Lived Novelty The first rather remarkable shift in the ideology of judicial application of law—especially in the first years of the Communist dictatorship—was the ephemeral emergence of decentralized constitutional review. In the pre-war Central Europe, the constitution was not viewed as a source of law which the judges were supposed to apply directly. Except for interwar Czechoslovakia and Austria, which had introduced constitutional courts, prior to World War II the courts in liberal democracies hardly ever referred to their constitution and had no power to set aside laws as unconstitutional. Moreover, Czechoslovak normativists opposed the direct application of human rights provisions because these clauses had rather the nature of ‘a monologue of the legislature’, so that they were not binding on courts and administrative authorities.139 In Stalinist Poland, despite the constitutional prohibition to do so, the courts several times disregarded statutes due to their unconstitutionality. In 1952, for instance, the Polish Supreme Court repeatedly set aside the provision of the Polish pre-war Criminal Code which established a special category of criminals, the ‘incorrigible’ offenders. The Polish Supreme Court rejected the very notion of incorrigibility as an imperialist invention which had no place in people’s Poland.140 In Czechoslovakia in the late 1940s and early 1950s, we can also find the courts exercising constitutional review, which can be seen in a line of the cases from that period. As we have noted above, the 1948 Czechoslovak Constitution set forth an explicit principle that the interpretation and application of law must be consistent with the Constitution. Decentralized constitutional review was genuinely decentralized, so that even the lower courts did not hesitate setting aside the law. 138

Similarly, a State Court decision of 10 January 1950, Sbírka rozhodnutí (1950) No.67.

139

F. Weyr, Československé ústavní právo [Czechoslovak Constitutional Law] (Melantrich, Praha, 1937), 248.

140

See two decisions of the Polish Supreme Court quoted in: A. Rzepliński, “Principles and Practice of Socialist Justice in Poland”, in: G. Bender and U. Falk (eds.), Recht im Sozialismus, Analysen zur Normdurchsetzung in osteuropäischen Nachkriegsgesellschaften (1944/45-1989), Bd.3, Sozialistische Gesetzlichkeit (Vittorio Klostermann, Frankfurt am Main, 1999), 1ff., 19-20.

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Thus, in 1949 a Czechoslovak regional court emphasized that the 1948 Constitution was to be applied directly; therefore, there was no need to wait until a law implementing the Constitution was enacted. For instance, an express constitutional provision abolished the old principle of inequality between children born within and out of wedlock; therefore, despite the lack of an express amendment to the Civil Code, a court concluded that an illegitimate child had the right to an inheritance based directly on the constitution.141 Despite the atmosphere of Stalinism, the Czechoslovak courts managed to render some progressive decisions. The most progressive decisions of ‘Stalinist constitutional review’ dealt with gender equality. The Czechoslovak courts repeatedly invoked the provisions of the new Constitution in order to emphasize the equal status of women. Therefore, after the 1948 Constitution entered into force, it was no longer entirely up to the husband to decide where to establish the marital home; therefore, a wife’s refusal to live in the house of her husband’s parents did not constitute grounds for seeking a divorce.142 Similarly, despite a statutory provision to the contrary, a mother might dispute the paternity of her child based on the constitutional principle of equality of men and women in society and the family.143 In the same gender fashion, the regional court set aside the old provision of the Austrian Criminal Code which made criminal the ‘abduction of a wife from her husband’,144 i.e., in fact criminalizing a special form of adultery. The court argued that, once the new Constitution entered into force, the genders gained equal status. Comparing the situation with the state of law in the pre-war Czechoslovak ‘bourgeois’ republic, the court noted that before the new regime took power, gender equality had not been sufficiently guaranteed. One of the examples was the unequal position of the wife in a marriage, as the husband in fact possessed power over his wife. This domination was also reflected in this peculiar criminal offense, which guaranteed exactly this power. Therefore, the court reasoned, the provision making ‘abduction of a wife from her husband’ a criminal of141

Decision of the Pardubice Regional Court of 7 October 1949, Sbírka rozhodnutí (1949) No.238.

142

Decision of the Košice Regional Court of 29 March 1949, Sbírka rozhodnutí (1949) No.28 (the main normative basis for the decision was the Art.1 para. 2 of the Constitution of 9 May 1948, which dealt with gender equality).

143

Decision of the Prague Regional Court of 18 February 1949, Sbírka rozhodnutí (1949) No.59.

144

See Section 96 of the (originally Austrian) Criminal Code of 1852.

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fense was unconstitutional and thus inapplicable.145 The editorial note to the decision—reflecting the typical utopian beliefs of the time and the economic determinism of Marxism—added that there would be no adultery in the new Socialist society thanks to economic safety which was accompanying the emergence of Socialism.146 In contrast, the courts virtually never invoked constitutional provisions in criminal cases where the accused had raised a defense that he was exercising a constitutional right. In the exceptional cases where they did, the courts emphasized the limited nature of constitutional rights. For instance, the Czechoslovak Supreme Court—in the case cited above of the priest who refused to administer last rites to an old woman because of her membership in the Communist Party (allegedly committing a grave crime against the State)—the Court rebuffed the defendant’s defense that, in so doing, he had exercised his own right to religious freedom: “The Constitution of May 9 [1948] guarantees religious freedom to everybody; however, that cannot mean that this freedom might be used to undermine [the regime of people’s democracy].”147

The judicial review of constitutionality was a very short-lived novelty of the Central European Stalinist judiciary. While other anti-formalist features survived into the 1960s, the very concept of constitutional review was unsympathetically rejected immediately after the end of Stalinism. Shortly after the end of Stalinism, some Socialist authors even attacked a competing Western ideology of the New Constitutionalism and the direct enforceability of the constitution. In their view, in the West “directly or indirectly constitutional principles are transformed into meta-juridical categories of the ‘law of nature’ or ‘morality’”.148 II.2.2. Marxist Ideology in Adjudication In the early Socialist period, the regime took its values and historical mission seriously. Events in the 1950s clearly illustrated a specific feature of Socialist legal culture, its rather quasi-religious (or, as Jiří Přibáň put 145

Decision of the Hradec Králové Regional Court of 30 September 1949, Sbírka rozhodnutí (1949) No.195.

146

Ibid., 270.

147

Decision of the Czechoslovak Supreme Court of 30 September 1949, Sbírka rozhodnutí (1949) No.51.

148

J. Beér, “The Normative Character of the Constitution of the Hungarian People’s Republic”, 2 (3-4) Acta Juridica (1960), 227, at 228-229. Cf. the view expressed in 1930 by Otto Kirchheimer, to the effect that “[s]ince the bourgeoisie must fear that legislation on property hostile to private interests will emerge in today’s parliament, such legislation is subordinated to conditions which appear more favourable to the bourgeoisie”. “The Limits of Expropriation”, in: O. Kirchheimer, F. Neumann, and K. Tribe (eds.), Social Democracy and the Rule of Law (Allen and Unwin, London, L. Tanner transl. 1987), 85-129, at 115.

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it, ‘quasi-natural’149) character. Decisions were subject to criticism if they did not exhibit the relevant Marxist policies.150 Based on her observation of East German trial judges of that era, Inga Markovits remarked that early Socialist judges: “[…] follow Party orders the way a religious person follows the advice of his priest: because they think that he is likely to be right. [Their] faith in the authority of the Party was a reflection of [their] faith in the Party’s cause. Their belief in Socialism made many ‘people’s judges’ unthinkingly follow Party orders.”151

The judges are not mere decision-makers in individual disputes; rather, they are ‘missionaries of Socialism’,152 its educators, preparing the working class for early arrival into the classless society where the law would wither away. During the Stalinist era, the task of judges was overtly political; they were expected to clearly articulate the Marxist policies and principles behind their decisions.153 In contrast to the later Socialist era in Central Europe, in the early Socialist era one often finds sincere optimism about the possibility of the Soviet type of Marxism and its scientific potential in judicial decision-making. Judges were supposed to decide ideologically and, in doing so, to admit it openly. The impersonal style of judicial opinions—typical for Continental judges but striking for Common-Law lawyers—disappeared and was replaced by the subjective reasoning of judges, all of whom were fighters against the remnants of capitalism. For instance, in June 1952, a group of young workers and peasants— who had alleged perpetrated anti-state activities—were put on trial for treason. The defendants were tortured; they were forced to confess to everything with which they had been charged. The State Court seized upon the case as an opportunity to unveil a new type of Socialist reasoning. From the very beginning of the opinion, it reads as some sort of political speech: “The case we are adjudicating is one of a very few where we are confronted with members of the toiling class, who were supposed to be the standard and set an example for other citizens. They did not meet these expectations: one in this way, 149

J. Přibáň, “Legitimacy and Legality after the Velvet Revolution”, in: J. Přibáň and J. Young (eds.), The Rule of Law in Central Europe (Ashgate Publishing, Dartmouth, UK, 1999), 29, at 47.

150

See the editorial note to the decision of the Pardubice District Court of 1 June 1949, Sbírka rozhodnutí (1949) No.239. Similarly, Inga Markovits has noted that the trial judges she studied were “criticized for being ‘inactive’ and ‘unpolitical’ and for failing to engage in ‘profound political discussions’”. I. Markovits, “Justice in Lüritz”, 50 Am. J. Comp. L. (2002), 819, 847.

151

Markovits, op.cit. note 150, 845.

152

Ibid., 842.

153

For East Germany, similarly ibid.

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another in that way, but all of them in an equally harmful way. They did not believe in themselves and in the nation; they did, however, believe in the enemy, who is trying to destroy our state order. Some of them even expected there to be war, and they would have been willing to stand alongside those enemies against their own nation. Their activity, though in the end bearing no fruit, was very dangerous to the society.”154

The opinions of many courts are full of Marxist slogans on the fundamental difference between the legal systems of bourgeois society based on exploitation, on the one hand, and the Socialist legal systems, on the other.155 For instance, from the perspective of building Socialism, prostitution is but a remnant of the former capitalist regime.156 The accused received from these judges various sorts of counsel, often of a bizarre nature. The judges were able to give such counsel because they had command of the mysteries of the omniscient Marxist-Leninist science. If the alleged perpetrator said that he did not like the Republic because he faced problems in securing an apartment, the judges did not hesitate to teach him that “if he had been a disciplined citizen of the Republic, he would have had to acknowledge that some problems in respect to housing were deliberately caused at the end of the war precisely by those persons for whose benefit he has at the present been working illegally”.157 The court also tried to detect the causes of the accused’s crimes. For instance, another man, “instead of reading noble literature which our popular, democratic youth has at its disposal, adored the culture of Western civilization and its dreadful penny paperbacks”.158 And finally another man “did not understand one thing: socialization of villages, the need of the collective and the human nature. If he had suppressed his egoism from the very beginning, if he had focused his efforts towards the fastest progress in the mechanization of our economy, if he had, as a reasonable human, recognized the priority of the collective interest over the selfish needs of the individual, […] then he would also have adopted a different stance as regards his duties as a loyal citizen of the state, and he would never have violated the law. [...] That is why he has lived a life enslaved by the bourgeois-capitalist view on private capitalist entrepreneurship.”159

It must have been shocking for Central European lawyers—accustomed to their rather traditional positivist doctrines—when their new Communist minister announced that law is about politics and that a judge is 154

Decision of the State Court of 26 June 1952 sign. 1 Ts II 84/52, 5 (unpublished).

155

See, e.g., decision of the Polish Supreme Court of February 1955 (the civil chamber sitting en banc), published in: 10 (7/8) Państwo i Prawo (1955), 290.

156

Decision of the Hradec Králové Regional Court, Sbírka rozhodnutí (1954) No.23 (criminal section).

157

Decision of the State Court, op.cit. note 154, 10.

158

Ibid., 10.

159

Ibid., 11.

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a political creature, not a sort of mechanical machine applying the text of the statute: “If a judge is a good Marxist, an experienced practitioner, a cultured and educated person, it is possible to say that ninety nine percent of his decisions have political significance; [his decisions] are the best form of popularization of the decisions of the [Communist] Party.”160

Similarly, the Polish Supreme Court highlighted that Socialist judges— while interpreting the law—must take into account the goals of Socialist politics. Formalism of the previous judiciary, its plays with the abstract legal concepts, unable to identify economic and class predestination, had no place in the interpretation of Socialist law. Judges applying the law must be aware of the aim of the law; this goal is supposed to be adherence to Socialist legality, the protection of the interests of workers, the people and the working intelligentsia. Therefore, interpretation must be flexible, the judge must go beyond the letter if it seems necessary, interpretation must not follow fossilized letter of the law. The judge must remember that the law reflects the will of the vast masses of the people.161 The overall atmosphere supported the identification of law, politics and the interests of the toiling people (i.e., Communist Party). In a very interesting article, written in an amazingly Stalinist style, in which seriously intended ideas and opinions took on a tragicomic flavor, a Czechoslovak army general criticized the alleged “absence of enough political and party standpoints in our [judicial] decisions”.162 “Especially older judges are still influenced by ghosts of bourgeois legal education about the non-political nature of law, about the impartiality of courts, about bourgeois judicial independence, etc.” Referring to his experience “with our working people”, the general described the interest of the working people in judicial decision-making in the following way: “Comrades often come with a judicial decision, show me Rudé právo [“Red law”, the Czechoslovak Communist Party daily] at the same time and say, ‘Comrade, how is it possible that Rudé právo, which elucidates the line of our Party in the building of Socialism, is publishing this while the judicial decisions contain the complete opposite?’ [...] [O]ur judges still underestimate the importance of editorials and 160

Z. Fierlinger, “Úloha našich soudů a prokuratur v upevňování socialistického vlastnictví a pracovní kázně” [The Role of our Courts and the Procuracy in Strengthening Socialist Property and Work Discipline], 91 Právník (1952), 419, at 427 (quoting the Soviet leader, Mikhail Kalinin). Similarly, in Poland, A. Rzepliński, Die Justiz in der Volksrepublik Polen (Vittorio Klostermann, Frankfurt am Main, Maria Jansen transl. 1996), 155 (at note 241, quoting literature of the 1950s).

161

Decision of the Polish Supreme Court (criminal chamber sitting en banc) of 14 March 1950, published in: 5 (7) Państwo i Prawo (1950), 146.

162

J. Kokeš, “Za lepší rozhodování našich soudů” [For Better Decision-Making by our Courts], 1 (1) Socialistická zákonnost (1953), 11.

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basic articles in Rudé právo—sometimes perhaps they do not read them at all— and decide their cases in isolation from the daily life of our beloved Party and our society. Our working people intuitively feel that, and this justifies its disagreement with judicial decisions. Therefore, I consider correct the requirement of our working people that a judicial decision must be politically and legally well justified.”163

A curious case was reported in the early 1960s in Czechoslovakia. Between 1952 and 1960, a priest had received a substantial sum of money for various religious services which he had not performed. The trial court did not consider this to be fraud because what was supposed to be performed was contrary to ‘Marxist scientific world judgment’. Accordingly, the performance was without any value, and believers suffered no damage by this deception. The appellate regional court quite reasonably rejected this argument, also by reference to ‘Marxist scientific world judgment’: “The accused obtained the money from his believers in a manner contrary to principles of Socialist morality and Socialist cohabitation. There is no doubt that any religion and any religious services are contrary to the scientific doctrines of Marxism-Leninism and that the citizens who gave their money to the priest in order for him to provide his services to them live behind the blinders of their religious imaginations, which are contrary to the scientific world doctrine. This does not mean, however, that a perpetrator who misuses their ignorance might exploit this and enrich himself in a way contrary to the principles of Socialist morality and Socialist cohabitation. If the court of first instance was right […] the functionaries of any religious organization would have misused religious beliefs and religious biases of our religious citizens in numerous ways in order to enrich themselves without being subject to criminal penalty. […] If the court considers a societal threat of any action, it is necessary to take into account the contemporary stage of religious maturity of our citizens and disabuse them of their incorrect religious imaginations and biases by education and explanations.”164

The speeches of domestic or Soviet Communist leaders were sometimes used and quoted by the judges,165 occasionally even the ‘Holy Writ’ of the 163

Ibid., 12 (my emphasis; the fact that the adverb ‘politically’ precedes the word ‘legally’ is hardly a coincidence).

164

Decision of the Prague Regional Court of 9 November 1960, Sbírka rozhodnutí (1961) No.22 (criminal section).

165

Decision of the Czechoslovak Supreme Court of 9 November 1951, Sbírka rozhodnutí (1952) No.3 (civil section) (quoting Prime Minister Zápotocký). Similarly the Polish Supreme Court’s opinion (criminal section) of 9 March 1950, in: Zbiór orzeczeń sądu najwyższego, Orzeczenia izby karnej [Collection of Decisions of the Supreme Court, Criminal Section] (hereinafter ‘Zbiór’) (1950), 7ff. (quoting the Polish Communist leader Bolesław Bierut). Cf. J. Wróblewski, Zagadnienia teorii wykładni prawa ludowego [Problems of the Theory of the Interpretation of the People’s Law] (Wydawnictwo Prawnicze, Warszawa, 1959), 375 (at note 55, citing other examples).

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Communist classics.166 I just wonder, however, whether Marxist classics were viewed as persuasive authorities or rather a kind of Marxist secular scientific ‘natural’ law. However, the explicit recital of Marxist classics was surprisingly rare. This might signify that judges—despite all their rhetoric—felt discomfort in justifying their decisions through Marxist classics, because that would clearly have gone beyond the mere ‘interpretation’ of law. It might mean that, with the exception of justification of political crimes, judicial self-perception never completely identified the judicial decision with political propaganda, although some of the decisions described in this work came rather close to this. Or, perhaps, it might also mean judges thought that an open and express exclamation of Socialist icons was something which only should be done in truly important cases; from this standpoint, the worship of the Marxist classics in more mundane cases would deprive them of their divinity. In its totalitarian omnipresence, the Stalinist theory of adjudication, based on the only world science, came very close to the other extreme of twentieth century totalitarian ideologies—German anti-Enlightenment Nazism. For both German obscure anti-scientific National Socialism167 and Marxist supra-scientific ideology, the spirit of these ideologies was supposed to govern the judicial interpretation of law completely and unquestionably. In contrast to the rather mysterious irrational Nazi ideology with its emphasis on actually ‘feeling’ the law,168 however, allegedly a purely rational and scientific activity lay at the back of Socialist judicial reasoning. Yet, despite talking all the time about the link between law and politics, Stalinist judges and lawyers did not become legal realists; quite to the contrary. The old Continental narrative of the one-right-answer— provided by judges to any case, however hard—was given a second wind. It was not the law and its logic but, rather, skill in Marxism, which enabled

166

Decision of the Polish Supreme Court op.cit. note 165. The Court gave an interpretation of economic crimes, in which it quoted, inter alia, Marx’s Das Kapital, Engels’ letters and Stalin’s Questions of Leninism. However, Stalinist hardliners criticized such quotations to authorities: “We can find few real Marxist-Leninist analyses even though we can find quotations to Marx, Engels, Lenin, Stalin, and Gottwald. These quotations are, however, rarely analyzed and they are often used incorrectly, only as window-dressing.” Kokeš, op.cit. note 162, 12.

167

Cf. the following passage written in 1934 by Carl Schmitt: “The whole of German law today […] must be governed solely and exclusively by the spirit of National Socialism. […] Every interpretation must be an interpretation according to National Socialism.” Müller, op.cit. note 35, 70.

168

Ibid., 73 (quoting Georg Dahm).

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judges to reach the only right answer.169 After all, the Socialist legal culture maintained that its judges were not only able to find the one true meaning of the law; they were also able to ascertain objective truth as fact finders in collaboration with lay assessors. As Marxism was the supreme science, knowledge of it alone was able to ensure the ‘scientific’ correctness of decisions. When the revolutionary fervor of the 1950s disappeared a decade later, the ideologically distorted formalism and one-right-answer thesis would remain in judicial thought and legal thinking. II.2.3. Identification of Law with Morality? Conceptually, Stalinist Socialist legality was radically different from its bourgeois counterpart. The tension between legality and morality or legality and legitimacy is one of crucial issues in Western legal theory; this conflict concluded into the concept of the material Rechtstaat as opposed to the prewar formal Rechtstaat.170 As Hart has put it, “first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.”171

Moreover, in the same article, Hart famously posits that unless the separation of law and morals is maintained in some form, “the existing law may supplant morality as a final test of conduct and so escape criticism”.172 Stalinist scholars showed that the emphasis Hart placed on the separation of law and morals was justified. In contrast with bourgeois law, they claimed, new Socialist law was heading towards a merger with morality. For this reason, Stalinist scholars resolved the relationship between Soviet law and morality in the following simplistic fashion: “Socialist law and Socialist morality have a common basis and common principles; the principles of Socialism. The tasks of Socialist law—to destroy exploitation, to eliminate the survivals of capitalism in human consciousness, and to cooperate in

169

Cf. I.S. Markovits, “Children of a Lesser God: GDR Lawyers in Post-Socialist Germany”, 94 Mich.L.Rev. (1996), 2270, at 2293, noting that: “Socialist law believed in substantive justice: it knew the answers (even if those answers changed over time) and therefore had to make sure that each individual judge would find them. Hence the innumerable instructions, analyses, inspections and consultations constantly keeping judges abreast of the current political line. The Party, in this scheme of things, was the medical authority on all social ills.”

170

Cf. for a recent treatise on this topic, D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Clarendon Press, Oxford, 1997).

171

H.L.A. Hart, “Positivism and the Separation of Law and Morals”, 71 Harv. L. Rev. (1958), 593, at 599.

172

Ibid., 598.

108

The Judiciary in Central and Eastern Europe the building of classless communist society—are at the same time moral tasks, in the sense that they are requirements of Socialist morality.”173

That is why Socialist morality is reflected in the law, and the law gained the possibility to control the content of morality. If something was unlawful, it was automatically immoral. At the peak of Stalinism, a 1953 article published in a law review of the Czech judiciary declared that: “Just and right is what serves and benefits the toiling people, people’s democracy, and the peace camp.”174 Only a few years earlier Hans Frank, a leading Nazi lawyer (and later a convicted criminal), had defined the concept of law in almost the same way: “Law is what benefits the German nation.”175 Both totalitarian systems identified law and justice and, thereby, made law uncontrollable by human reasoning, exactly as Hart had predicted. A closely related question is whether behavior that is immoral is, thereby, automatically illegal as well. The high aspiration of totalitarian Stalinist theory as well as practice suggests as much. In Poland in the early 1950s, for instance, the moral obligation of the workers to work overtime was effectively applied as a legal duty by the Polish Supreme Court. The Court held that the repeated refusal to participate in voluntary overtime work might constitute grounds for terminating an employment relationship.176 A similar kind of reasoning—mixing moral and legal duties—could be seen also in Czechoslovakia. In a 1949 Czechoslovak criminal case, for instance, the accused had made allegedly offensive remarks to the members of voluntary Socialist brigades, sneering at their activity. While the lower court reasoned that these remarks could not be considered the crime of subversion against the republic because the Socialist voluntary brigades were not a part of the republic, the appellate court held that these brigades formed a part of the republic: they reflected a new ideal of the toiling masses about labor, its significance vis-à-vis society and the position of an individual in the wider collective. The court quite openly conflated the moral and legal duties of the accused.177 173

S.A. Golunskii and M.S. Strogovich, The Theory of the State and Law (originally issued in Russian: Teoriia gosudarstva i prava (Akademiia nauk SSSR, Institut gosudarstva i prava, Moskva, 1940), in: J.N. Hazard (ed.), Soviet Legal Philosophy (Harvard University Press, Cambridge, MA, H.W. Babb transl. 1951), 351, at 379 (emphasis in the original). I owe my thanks to Doron Teichmann for his interesting observations on this topic.

174

Kokeš, op.cit. note 162, 13.

175

Quoted in: V. Knapp, Problém nacistické právní filosofie [The Problem of Nazi Legal Philosophy] (V. Linhart, Praha, 1947), 46.

176

Two decisions, from 1953 and 1954, cited by: Hazard, op.cit. note 126, 85.

177

Decision of the Bratislava Regional Court of 9 December 1949, Sbírka rozhodnutí (1950) No.161.

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We can find even more absurd notions. Thus in 1950, for instance, the Czechoslovak Supreme Court denied the long established principle that no one should be punished for not reporting a crime if in doing so he would expose his close relative to the danger of being accused of a crime. The Court held that, in the new Socialist society, no one can find a conflict between the state interests and interests of his relatives if crimes against the state and its order are in question. Therefore, the Court held that the accused in this case was obliged to report his fiancée’s crime and was guilty himself for failing to do so.178 However, after the fall of the Stalinist version of Communism, the state lost such an omnipresent ambition. Consequently, approval was given to a personal area without the necessary intrusion of law. It would be in the future era of Communism, the scholars claimed—after the gradual replacement of rules of law by rules of morality, the observance of which would not need to be guaranteed by state compulsion—when law and morality would finally merge.179 II.2.4. The Instrumental Concept of the Law The tendency to use the judiciary as an instrument to facilitate the societal transformation from capitalism to Socialism is clearly visible in Stalinist Central Europe in both civil and criminal decisions. To some extent, the judicial methodology that emerged had ‘a binary structure’,180 i.e., was based on a ‘two-track strategy’ or a ‘methodological dualism’ similar to that practiced by the Nazi courts.181 It meant that judges put much of their activist energy into the reformulation of older law, while showing far greater restraint vis-à-vis the new Socialist legislature. Although this conclusion is generally valid, in many cases Stalinist judges were not afraid to radically reinterpret new laws. In fact, although a ‘two-track strategy’ can readily be observed, activist judicial decision-making proved that the Stalinist conception of judicial activism went beyond mere pragmatic manipulation of pre-Communist law. Rather, all resources of the society were put 178

Decision of the Czechoslovak Supreme Court of 28 March 1950, Sbírka rozhodnutí (1950) No.165.

179

Knapp, op.cit. note 107, 106, 114-115. Cf. decision of the Supreme Court of the Czech Socialist Republic of 28 April 1987, Sbírka rozhodnutí (1988) No.7 (criminal section) (rules of Socialist coexistence, being in themselves merely moral duties, cannot establish a legal duty, which exists only if supported by law).

180

Grosswald Curran, op.cit. note 51, 172.

181

Ibid., 172, quoting A. Kaufmann, “National Socialism and German Jurisprudence from 1933-1945”, 9 Cardozo L. Rev. (1988), 1629, 1645, and B. Rüthers, Die unbegrenzte Auslegung: Zum Wandel der Privatrechtsordnung im Nationalsozialismus (J.C.B. Mohr, Tübingen, 1968), 177, respectively.

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into making the systemic transition as smooth as possible. A judge was supposed to be an agent in the transition from the system of plurality of ownership and democracy towards a totalitarian Stalinist dictatorship. A 1953 Czechoslovak case is a typical example of the situation where courts employed instrumental reasoning in an attempt to reflect specific conditions relating to societal transformation. The Supreme Court faced fairly specific rules on statutory limitation as laid down by the new 1950 Civil Code. A state company, the successor to a nationalized corporation, had attempted to enforce a contract entered into by that corporation, despite the fact that—as followed from the provisions of both the 1811 General Civil Code and the new 1950 Civil Code—the rights in question were subject to statutory limitation and were, thus, unenforceable. The lower courts adopted this position. The Supreme Court, however, emphasized the specific circumstances of the Communist nationalization, which effectively disabled the rightholder from invoking the claim before the court earlier. These specific circumstances were not reflected in the code but, nevertheless, had to be considered by the judiciary: “Therefore, under this new state of industrial relations based on the new economic foundation, it is not possible to read the provisions of the old Civil Code in isolation; these provisions emerged from a totally different material base and under totally different political, economical and moral opinions […] if the situation is not covered by the law at least by way of analogy, it must be judged with regards to the circumstances of the case and according to the interests of the society. In deciding the question of statutory limitation, the intent of today’s legislature is crucial. This intent can be found if the trends of the decrees and laws on nationalization are taken into account; this intent equals the interest of the state to acquire nationalized property to the full extent […] [further arguing through constitutional principles].”182

Conceptions of the superiority of the general collective interest over an individual particular interest were emphasized in the case law.183 Balancing of the opposite social interests was often done openly, which was another radical novelty in the Central European judiciary with a rather deductive mode of legal reasoning. A Czechoslovak regional court, for instance, balanced the interests of a private entrepreneur and a nationalized cooperative regarding the use of a garage and decided that the policies embedded in the constitution clearly favored the latter over the former. The court held that: “It is true that the constitution tolerates private entrepreneurs to some extent; on the other hand, it supports advanced forms of societal 182

Decision of the Czechoslovak Supreme Court, Sbírka rozhodnutí (1953) No. 139.

183

One of the first decisions is that the Plzeň Regional Court of 23 July 1949, R II 116/49, Sbírka rozhodnutí (1949) No.152 (the case of the lessor of the land was decided on a principle of the constitution which proclaimed that the land is owned by those who work on it, although this was made more visible from the editor’s comment to the case than from the reasoning itself).

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enterprise, including popular cooperation.” That is why: “in the case of a conflict between the interests of the Socialist industrial sector and capitalist sector it is necessary to support the former, not the latter.” Despite the contractual duties, the court held that the withdrawal from the lease contract was valid and enforceable.184 Employing the same type of reasoning, the Czechoslovak Supreme Court held that illegal escape from the country per se endangers state interests, since the state would be dispossessed of its labor force and foreign enemies would use this flight to defame the country. In this way, criminal sanctions were extended by judicial action to all cases where Czechoslovak citizens attempted to flee the country.185 An instrumental notion of law was not only employed in cases where the interests of state property and the economy were directly at stake. The Stalinist judiciary’s ambitions went much further than that. For instance, a Czechoslovak regional court in a 1950 family-law case denied ‘the liberal’ notion of the family, the main function of which is the accumulation of property. In the court’s view, the main rationale of the family in a new people’s democracy was its ‘societal and ethical function’.186 In contrast to the pre-war era, the courts began to use this all-purpose argument— the interest of society—also in civil law proceedings.187 Similarly, courts applied the principles of Socialist cohabitation and the legal conscience of the people.188 A basic policy of the Socialist state was the efficient use and distribution of the labor force. This was to be achieved by the gradual disappearance of the remnants of private entrepreneurs who contributed to the waste of the labor force. Therefore, in cases dealing with parental contributions to 184

Decision of the Uherské Hradištì Regional Court of 14 February 1950, Sbírka rozhodnutí (1950) No.212. Some Polish courts reasoned their decisions in the same manner; see, e.g., a 1952 decision: “An individual cannot use his right deriving from his private property in such an inconsiderate manner as to create serious difficulties in the implementation of tasks which according to the economic plan a unit of the socialized economy has to achieve” (quoted in: Hazard, op.cit. note 126, 85).

185

Decision of the Czechoslovak Supreme Court of 21 April 1950, Sbírka rozhodnutí (1950) No.168 (criminal section).

186

Decision of the Ostrava Regional Court of 21 April 1950, Sbírka rozhodnutí (1951) No.44 (civil section).

187

Cf. decision of the Hradec Králové Regional Court of 8 February 1950, Sbírka rozhodnutí (1950) No.191 (arguing that the determination as to whether the plaintiff, an adult university student, had the right to be supported by her parents during her study, depended on the parents’ financial capacity and the student’s academic ability, as well as society’s interests in having the student study in that program).

188

Decision of the Czechoslovak Supreme Court of 9 November 1951, Sbírka rozhodnutí (1952) No.3 (civil section).

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support their children, the courts refused to base the calculation of the contribution on the actual income of the child’s father—a self-employed trader—because his alleged income was substantially lower than the pay he might have received had he been employed. In several cases, Czechoslovak courts based their determination of the father’s contribution on the hypothetical income he might have received had he been employed in the nationalized industry, pointing out that father’s behavior constituted a waste of resources, and advising the parent how to arrange his future employment.189 Besides this apparent ‘law and economics’ argumentation, another important societal interest, however, was not disclosed by the court—the state’s ostensible disrespect for small private businesses. A further example was the policy to change old-fashioned societal attitudes towards women who decided to work instead of staying at home. Most decisions that can be seen as favoring equality of gender can be explained as part of the effort to strengthen the labor force, when judges used the ‘right’ to equality only as an instrument to get more women into the workforce. The concept of right, as used in this context, has a meaning that is very different from what we might opine it to mean. In one case,190 a divorced father demanded that he should be granted custody of his children. He claimed that he had a proper life, as his new wife stayed at home without occupation and she would be able to care for the child fully. In contrast, his ex-wife, in his opinion, was not able to do so as she was employed. The court dismissed the claim, arguing that: “the mother of the child is a good and skilful worker; her child is clean, healthy and normally developed. During her occupation the grandmother cares for the child.” The editorial note to the decision clearly highlighted the vast political impact of the decision, which, in the editor’s view unfortunately, was not properly articulated by the court: “Our society, which is directed toward the realization of Socialism, is based on full equality between men and women in all areas of societal life. Women were guaranteed full access to education and all professions, offices and degrees [quoting the constitution]. All citizens—it means also women—were guaranteed social rights [enumerating the rights listed in the constitution]. […] The People’s democracy replaced gender inequality, one of the features of the society separated into distinct classes; in the capitalist society a woman, condemned to household works, served in fact privately to her husband, she was also fully depended on him economically. The economic order directing to Socialism gave a woman the possibility to shed this dependence and throw off the dominance of her husband. It enabled her to step into societal production and ensured her a position equal to that of a man. By the transfer of the 189

Among others, decision of the Ostrava Regional Court of 1 February 1951, Sbírka rozhodnutí (1952) No.11 (civil section).

190

Decision of the Olomouc Regional Court of 13 February 1950, Sbírka rozhodnutí (1950) No.187 (editorial note 280-281).

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means of production into communal property, the private capitalist entrepreneurs were denied the possibility to decide who would be employed in their firms and under what conditions. Thus, any reasons for the discrimination of women in production were eliminated. […] Therefore, if the legal order of the people’s democracy guarantees a woman full participation in the communal production and supports this participation, her work per se cannot be the reason why she would not be able to care for her child. […] [Because the mother in question is employed, she will raise her child] in harmony with the interests of the society. That would not be guaranteed in the same manner in the home of the father, where the child would be raised by his second wife, who—as the father himself remarked—is not employed.”191

The editor of the court’s decision indicated that a woman who decided to be employed must be favored over a woman who does not work. This thesis was followed by the courts. For instance, in one of these decisions, a regional court refused to lower a father’s contribution to his former wife for maintenance of their children. Although the father argued that he had to support his new wife, who did not work, the court rebuffed this argument. The court compared his ex-wife, who had joined the process of building of Socialism, with his new wife, who had not. The court remarked that the father did not indicate any reason why his new wife was not able to work.192 It became commonplace for members of the Stalinist judiciary to utter certain terms, such as class, ‘classness’ (an artificial word, meaning something like ‘class character’) and Socialism. Every imaginable phenomenon had to be judged in the light of ‘classness’. As no one knew precisely what ‘classness’ (třídnost) really meant, it was another welcome tool to make the law more flexible and open to the will of the Party. A Czech judge—in exile in the West already in the late 1950s—characterized the irrational and arbitrary aspect of the term, ‘classness’ in this way: “Viktor Knapp, my former teacher and Czechoslovakia’s most influential writer in the field of civil law, has called the class content of law ‘a brilliant discovery of legal science’, confessing that until then we staggered through an impasse of sterile idealistic speculations. Those of us in the field who were expected to implement this new policy and who had preserved at least a modicum of self-respect were somewhat less than convinced of the brilliance of this insight. We felt, rather, that the whole class-concept ‘discovery’ was irrational, ambiguous and arbitrary.”193

The editor of the Czechoslovak case reporter warned judges that, in considering the value of principles embedded in precedent (the established case law), they also must employ the class criteria as reflected in the legal opinion of the working class and have regard for the general interest of 191

Ibid., 280-281.

192

Decision of the Ostrava Regional Court of 11 July 1951, Sbírka rozhodnutí (1952) No.10 (civil section).

193

O. Ulč, The Judge in a Communist State. A View from Within (Ohio University Press, Columbus, OH, 1972), 31.

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the state. For instance, in applying case law explaining how to calculate damages, the court should consider whether the plaintiff was a member of the toiling class, who really needed the money, or whether the person did not need it because he or she already had sufficient assets. While the former should be awarded full damages, the latter should not.194 Following this line of reasoning, the Polish Supreme Court did not hesitate to proclaim in 1950—contrary to the clear provision of the law—that a landlord had no right to evict a tenant for failure to pay rent if the tenant was in a difficult financial situation.195 Similarly, the Czechoslovak judiciary clearly favored employees in their claims against their private employers until the private employers disappeared in the course of introducing Socialism. For instance, a court remarked in 1949 that the employee was not able to waive her right to extra payments for work done during Christmas, although the employer stipulated it as a condition of the contract. The court found that this condition would be against good morals, as this act would be a form of exploitation which is inadmissible in a people’s democracy.196 Yet another example of the instrumental notion of law and the rather pragmatic approach to its interpretation was the use of Socialist ‘comparative’ law in the application of domestic law (however, the adjective ‘comparative’ was never used in that time because until the 1960s comparative law was called ‘bourgeois legal theory’197). Czechoslovak legal scholarship—like that of many other Socialist countries of that time— imitated without imagination ‘Soviet legal theory’, and the quotation of one major Soviet work or another was almost a duty for every Socialist scholar. On the other hand, as judges were aware of the relativity of the legal interpretation in many cases in the emerging new political system, they took as a given that their domestic legislation might be interpreted in a way more consistent with the purposes of Communism if the law and its application in the Stalinist Soviet Union—the archetype of all emerging Socialist systems—were considered in their own judicial opinions. Therefore, one can find examples of the creative use of Soviet law in the adjudication of other Socialist states.198 194

See the editorial note to the decision of the Pardubice District Court of 1 June 1949, Sbírka rozhodnutí (1949) No.239.

195

Decision of 21 November 1950, published in: Państwo i Prawo (1951) No.5, quoted in: Hazard, Communists and Their Law, op.cit. note 126, 83.

196

Decision of the Nitra Regional Court of 28 April 1949, Sbírka rozhodnutí (1950) No.44 (civil section).

197

Golunskii and Strogovich, op.cit. note 173, 11.

198

For instance, in the statement of the Czechoslovak Supreme Court issued en banc on 7 March 1960: the Soviet Labor Code was cited as an example of the Socialist

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II.2.5. Heavy Emphasis on Criminal Sanctions One of the most significant features of Stalinism was the general tendency toward the disproportionate use of criminal law. If one examines judicial files, it is possible to discern—on the part of the judiciary—an overtly hostile attitude towards the accused.199 Criminal decisions dominated the Czechoslovak case reporters throughout the era of Stalinism.200 The Czechoslovak Supreme Court repeatedly set aside decisions of lower courts which had imposed, in that Court’s opinion, mild punishments upon perpetrators of crimes against the state. The whole rhetoric of the Supreme Court (and, subsequently, also lower courts) indicated that criminal law was deemed to be a tool for promoting the transformation of society by means of the uncompromising treatment of offenders against the state. The very question of who qualified as an offender against the state was very broadly conceived. As a former Czechoslovak judge recollects: “No one has ever been able—or willing—to define a class enemy. We asked ourselves such questions as: Is class hostility based on former material possessions, on a record of past exploitation, on having held a high office in the pre-Communist state, or is it simply a question of one’s state of mind? […] Who is a ‘bigger’ enemy: an atheistic ex-exploiter or a devout Catholic laborer? […] To repeat, nobody in the post-1948 regime ever attempted to work out definitive and binding criteria for distinguishing between the enemies and the allies of the toiling masses. This comfortable omission enabled the organs of the state, including the judiciary, to manipulate the enigma for the purpose of intimidation and selective discrimination.”201

A 1950 decision of the Czechoslovak Supreme Court can be cited as a typical example.202 The accused, in this case, had argued against collectivization and the establishment of cooperative agricultural farms. The principle (Sbírka rozhodnutí (1960) No.27). The most ‘comparative’ decision of that era was the decision of the Czechoslovak Supreme Court of 2 February 1954 (Sbírka rozhodnutí (1954) No.30). In determining which acts were to be considered as an act of the Socialist state, it quoted Soviet case law, the Civil Code of the Russian Soviet Federative Socialist Republic, and three Soviet textbooks. 199

This is in a striking contrast with the revolutionary fervor that prevailed in Russia in 1917 immediately following the Socialist revolution, where sentences were generally mild, especially in relation to poor people. For a detailed description see Campbell, op.cit. note 103, 93.

200

See Sbírka rozhodnutí for 1949 and particularly for the early 1950s (appellate courts without exception took a very tough stance towards the accused, interpreting the law as strictly as possible). The situation in East Germany was similar; cf. Markovits, op.cit. note 150, 842-843.

201

Ulč, op.cit. note 193, 31-32.

202

Decision of the Czechoslovak Supreme Court of 20 March 1950, Sbírka rozhodnutí (1950) No.171; a similar case in Poland was a 1950 Supreme Court decision: Zbiór (1950) No.7.

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prosecutor qualified his conduct as a crime of disseminating alarming news. The lower courts considered this to be a petty crime; therefore, it suspended the convicted man’s imprisonment conditional on his future behavior. In contrast, the Supreme Court highlighted the important interest of the society, i.e., the collectivization of private farms, which had been endangered by his conduct and held that there was no place for a suspended sentence. Criminal law was also supposed to yield a higher work discipline and subjected even negligent workers to punishment. Therefore, it should not be surprising when a contemporary observer noted that there was a higher number of workers imprisoned in a self-proclaimed workers’ state than in a liberal bourgeois state.203 The courts took into account the class origins of the accused persons, and that their class origins could per se demonstrate hostile intent.204 The very fact that the accused was, for instance, a wealthy peasant (following the Soviet terminology, called ‘kulak’) led to serious consequences. People were punished for the intentional crime of sabotage, even though their activities were apparently negligent. Being a ‘kulak’ was itself evidence that criminal conduct was intentional rather than negligent. The idea of the presumption of innocence was seriously shaken. In like fashion, the Czechoslovak Supreme Court criticized the lower courts for not taking into account the fact that the accused was a member of the higher strata of his village; in the Supreme Court’s view, his status made clear his motive to destroy the process of agricultural collectivization.205

III. The End of Stalinism and the New Socialist Textual Positivism III.1. Post-Stalinist Desiderata: Stability and Formality The aftermath of Stalinism reduced the original activist thoughts about the law and its capability to change the society and, also, its arbitrary and unlimited misuse. Stability and formality of the law became the new 203

Ulč, op.cit. note 193. The situation was similar in Hungary in the 1950s; see A. Gündel, “Zur ungarischen Justizpolitik in den fünfziger Jahren”, in: Bender and Falk, op.cit. note 140, 83, at 95 (79.2% of the convicted criminals in 1956 were workers, 2.5% ‘kulaks’, 2.5% capitalists, 4.9% intellectuals).

204

Ulč, op.cit. note 193, 33.

205

Decision of the Czechoslovak Supreme Court of 19 September 1950, Sbírka rozhodnutí (1951) No.1 (criminal section). Cf. decisions of the Mladá Boleslav District Court of 9 December 1950, Sbírka rozhodnutí (1951) No.2 (also arguing on the basis of the class profile of the accused person) or the Mladá Boleslav Regional Court of 16 December 1949, Sbírka rozhodnutí (1950) No.114.

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desiderata.206 The process of the change from original activist notions was gradual—originating in the late 1950s, throughout the 1960s and 1970s. Although bourgeois legal positivism was strongly condemned as a quasiscience, the Soviet conception of law acquired some strong textualist features. The new decision-making became more and more positivistic and letter-of-the-law oriented. On the other hand, Socialist legal scholarship always claimed that the job of a judge was not mechanical and must not be politically neutral.207 The first small indications that Stalinist judicial activism had passed its zenith were visible shortly after the death of Stalin. In 1953, the Polish Supreme Court noted that “the principles of social intercourse can never lead to a modification of explicit dispositions of Socialist law in the People’s State”.208 Decision-making—which interpreted the law against the possible meaning of the statutory text (decision-making “contra legem”)— was expressly rejected as being in conflict with ‘Marxist interpretation’.209 However, even before the riots of 1956 and the ultimate end of Polish Stalinism, the Polish Supreme Court had emphasized that: “[p]eople’s legality means the duty of citizens to observe the laws in force. While imposing this duty on the citizens it is not permissible to obscure the actual meaning of the law and to expose citizens to unexpected situations and surprises.”210

All Central European nations followed the same path in the 1950s. The death of Stalin seems to have been a climax, after which the ideology of anti-positivism was in gradual decline. Also in 1953, the Czechoslovak Supreme Court condemned the trend which the same Court had itself started three years previously.211 Now, the guilt of the person accused of a crime could not be presumed simply on the basis of the fact that the accused was a member of the hostile class, i.e., a former exploiter.212 206

J.N. Hazard, Communists and Their Law. A Search for the Common Core of the Legal Systems of the Marxian Socialist States (The University of Chicago Press, Chicago, IL, London, 1969), 131.

207

Cf. for example the quotations in: S. Frankowski, “The Independence of the Judiciary in Poland: Reflections on Andrzej Rzepliński’s Sądownictwo w Polsce Ludowej (The Judiciary in People’s Poland) (1989)”, 8 Ariz.J.Int’l & Comp.L. (1991), 33, 33-34.

208

Quoted by: Hazard, op.cit. note 206, 86.

209

Decision of the Polish Supreme Court (the civil chamber sitting en banc) published in: 10 (1) Państwo i Prawo (1955), 146, quoted by: Wróblewski, op.cit. note 165, 419-420 (at note 42).

210

Decision of 1955, quoted by: Hazard, op.cit. note 206, 86-87. Similarly, decision of the Polish Supreme Court of February 1955 (the civil chamber sitting en banc) published in: 10 (7-8) Państwo i Prawo (1955), 290.

211

See supra notes 204 & 205 and the accompanying text.

212

Decision of the Czechoslovak Supreme Court of 3 October 1953, Sbírka rozhodnutí (1954) No.19 (criminal section).

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A much more visible departure from anti-formalism and Stalinist activism in Czechoslovakia was a March 1954 decision of the Czechoslovak Supreme Court relating to a property dispute. According to the trial court, the plaintiff had been unlawfully deprived of the possibility to purchase the property in question; however, the result of this breach of law was in accordance with the interests of the working people because the plaintiff did not need the property and because the defendant was a hard-working man and was going to get a special award for his work. The plaintiff merely misused her formal rights.213 The Supreme Court used a completely different rhetoric than it would have used even several months before. The Civil Code was “the expression of the will of toiling people led by the working class,” which means that “obedience to valid laws and not violation of these laws is consistent with the will of the working people, which passed these laws, and therefore it is in the interest of the whole”.214 The new trend had the support of Communist academia. Czechoslovakia’s most prominent lawyer claimed that judges are bound by statutes. Although it was necessary to ‘avoid’ legal dogmatism and formalism, Czechoslovak law did not allow the decision-making body to decide a case solely according to class consciousness and, thereby, breach the law. It was mainly up to ‘the accurate legislature’ to assure that law expressed the interests of the ruling class and responded to the changes which occurred as a result of the development of economic relations. It was for the legislature, not the judge, to ensure that the law does not become an obstacle to the development of economic relations and proper class interpretation and application.215 At the same time, the concept of ‘Socialist legality’ acquired a strong formalist flavor. After the 1956 ‘discovery’ of the Stalinist crimes, the Soviet Communist Party proclaimed that the dictatorship of the proletariat had fulfilled its historic mission by removing the remnants of the old regime. As a result, the phase of a ‘developed Socialist society’ replaced the dictatorship of the proletariat. It was alleged that the Stalinist regime had breached Socialist legality, and for this reason the importance of ‘Socialist legality’ was emphasized even more. In contrast with Stalinist theses, in theory no exception to the observance of enacted law was allowed. A leading Czechoslovak scholar dealing with this subject was Jiří Boguszak, himself a former adherent of Stalinist doctrine. For him, Socialist 213

Decision of the Czechoslovak Supreme Court of 2 March 1954, Sbírka rozhodnutí (1954) No.88 (civil section).

214

Ibid., 172-173.

215

V. Knapp, Předmět a systém československého socialistického práva občanského [The Object and System of Czechoslovak Socialist Civil Law] (Nakladatelství Československé akademie věd, Praha, 1959), 87 (my emphasis).

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legality meant “making Socialist law by the Socialist state and assuring the realization of Socialist law consistently with Socialist legal conscience”.216 Although Socialist legality was claimed to be a revolutionary invention of Marxism, there was nothing revolutionary in this brief definition. The real ‘revolutionary’ core lay in the fact that the law was supposed to serve the transformation of society and the destruction of the old societal order. The remarkably formalistic and legalistic nature of this new doctrine should not be overlooked. We must, however, understand that often rather simplistic formalist solutions were results of the post-Stalinist atmosphere and of a deep desire of many Marxist lawyers to avoid future injustices. Boguszak explained that there was no need in the Socialist state for the government to use unlawful methods, as the regime of popular democracy was supported by the vast majority. This was so because the function of the Socialist state—the development of Socialism—was supported by all the people. All the state’s policies and rules were openly declared and published in law. In Boguszak’s view, Socialist legality was also the method of the Socialist state vis-à-vis the enemies of the regime. The ‘classness’ of Socialist legality was openly acknowledged: the law allegedly served to eliminate the class structure and the exploitation inherent in bourgeois society. However, for Boguszak, Socialist legality even protected the former exploiters who lived the “life of ordinary working men”.217 The flaw in his ideas is that they asserted as fact what was actually nothing more than a mere wish (the support of the state by the people). Although, many of these theses appeared nice on the surface, characteristically, Boguszak did not posit a proper means to ensure respect for them. Above all, any potential role for the courts in this process was rejected. If the judiciary were assigned this task, the balance of power would tip in its favor, which would be contrary to the principle of democracy, Boguszak claimed. The guarantee of Socialist legality was fulfilled by the ‘Socialist ombudsman’: the prosecutor. The obvious flaw in this solution was this body’s direct subordination to the Communist Party.218 During the post-Stalinist era, the principle of Socialist legality functioned more or less effectively. However, Inga Markovits seems correct in her analysis of the core of this concept. “Despite their insistence on law and legality, modern East European constitutions are not expressing 216

J. Boguszak, Základy socialistické zákonnosti v ČSSR [The Foundations of Socialist Legality in the Czechoslovak Socialist Republic] (Československá akademie vĕd, Praha, 1963), 7.

217

Id., “Právní záruky socialistické zákonnosti v Československé republice” [Legal Assurances of Socialist Legality in the Czechoslovak Republic], 98 Právník (1959), 113, 116.

218

Ibid. See, in detail, Chapter 2, Part IV.5.

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bourgeois Rechtsstaat (‘rule of law’) notions”, claims Markovits. The essence of this concept was rather the Socialist regime’s belief that order, regularity, and discipline would enhance the goals of the Socialist state.219 This was approved by the practice of law enforcement. Unless one was ‘an enemy of the Socialist society’—such as a dissident, a former exploiter, a member of the independent trade unions, or, let’s say, an independent musician, or a family member of one of these persons—her rights were protected by the legal system. But, characteristically, the courts did not figure as main actors in law enforcement, nor did the system assure judicial independence. III.2. The Contradiction between Claimed Anti-Formalism and Practiced Ultra-Formalism If one reads the works on the Socialist ‘theory of state and law’ from the 1970s or 1980s, at first glance the anti-positivism and anti-formalism of the Socialist doctrine is striking. “We are told that legal positivism deliberately distracts our attention from the socio-economic roots of the law, that it rejects any attempt at studying class aspects of law, that is formalistic and, therefore, reactionary.”220 The official self-perception of Communist judges was also strongly anti-formalist, as evidenced by frequent reports, directives and statements of the supreme courts. The supreme courts prepared these documents as evaluations and appraisals of case law to react promptly to Communist Party Congresses; in the beginning of these evaluations, they often emphasized the Party politics of the time. In these official documents, the anti-formalism of the Socialist judiciary always won out, at least rhetorically, against ‘capitalist’ positivism and dogmatism. For instance, the 1974 “Report of the Chief Justice of the Czechoslovak Supreme Court on the Significance of Ideology in the Judiciary” instructed the judiciary to be a reliable tool to strengthen state authority and the authority of

219

I.S. Markovits, “Law or Order – Constitutionalism and Legality in Eastern Europe”, 34 Stanford L. Rev. (1981-1982), 513, at 522. Cf. ibid., 525: “Legality, under Socialism, means order and discipline.”

220

See Sadurski, op.cit. note 100, 187. Cf., e.g., the opinion of Gyula Eörsi, who, on the one hand, condemns activist Western judiciaries and preaches many formalist features of Socialist adjudication; on the other hand, however, he argues that “the application of civil law [by a Socialist judge] requires a thorough analysis and consideration of the economic and social order as a whole”. G. Eörsi, Fundamental Problems of Socialist Civil Law (Akadémiai Kiadó, Budapest, 1970), 74.

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state bodies and, also, to be an effective ‘instrument’ in enforcing Socialist ideology.221 Czechoslovak judges were ordered to follow the ‘Marxist-Leninist world view’ and to fight bourgeois remnants in human thinking.222 They were directed to teach the masses to live a proper Socialist life; they had to realize that what they were doing was not the mere application of law but, rather, the solving of an important societal problem.223 Pure theorizing without touching upon daily realities and applying Marxist-Leninist philosophy might jeopardize this mission, the Court warned.224 In theory, the activity of the court ends in this educational purpose and transformative role;225 the punishment or the judgment that one party prevailed over another party in the litigation was theoretically rather a by-product of the trial.226 The justice dispensed by the Socialist judiciary might be characterized not as ‘conflict-resolving justice’ but, rather, as ‘policy-implementing justice’.227 The law’s purpose was to teach the workers what the basic 221

“Zpráva předsedy Nejvyššího soudu Československé socialistické republiky o významu ideologické práce v justice” [Report of the Chief Justice of the Supreme Court of the Czechoslovak Socialist Republic on the Significance of Ideology in the Judiciary], Sbírka rozhodnutí (1974), 432-441, at 439.

222

“Směrnice pléna Nejvyššího soudu Československé socialistické republiky k hlavním ideologickým problémům v rozhodovací činnosti soudů a státních notářství” [A Directive Issued En Banc by the Supreme Court of the Czechoslovak Socialist Republic on the Main Ideological Problems in Decision-Making of the Judiciary and State Notaries] (hereinafter ‘Directive’), Sbírka rozhodnutí (1974), 441-458, at 446.

223

Ibid., 449.

224

Ibid., 455.

225

A.F. Kleinman, V.I. Lenin o zakonnosti, sude i prokurature [V.I. Lenin on Legality, Courts and the Procuracy] (Izdatel’stvo MGU, Moskva, 1961), 17ff.; Campbell, op.cit. note 103, 76ff.

226

Markovits, op.cit. note 219, 528: “The rights and interests involved are not to be protected for their owners’ sake, but for the social purposes they embody”; and M. Damaška, The Faces of Justice and State Authority. A Comparative Approach to the Legal Process (Yale University Press, New Haven, CT, London, 1986), 87: “The more fully a state realizes its activist potential, the narrower the sphere in which the administration of justice can be understood as dispute resolution, and the more the legal process is pruned of procedural forms inspired by the key image of a partycontrolled contest.”

227

Ibid., 88. A very good example of this kind of thinking is the book reporting on a joint East German-Indian conference on role of lawyers in transformation of society. See D.A. Desai (ed.), Role of Law and Judiciary in Transformation of Society (Kalamkar Prakashan, New Delhi, 1984).

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rules would be in the future paradise.228 This was characteristic: while the Western liberal conception of judicial proceedings is individualistic (a trial is the clash of the opposing parties’ interests), Socialism in fact relied on the collectivist goal of the proceedings, i.e., the education of the masses in a new Socialist morality. All the major procedural codes in their very first provisions emphasized the courts’ function of enlightenment—even though these criteria were rarely met in practice.229 However, if one studies in detail Socialist textbooks of that era on positive law or legal theory, or if one reads carefully Socialist case law of the 1970s and 1980s, the gap between official Communist rhetoric and actual practice is striking. Anti-formalist ideals remained on paper only. Most of these ideals were more wishful thinking than a true reflection of the Socialist judiciary. What was realized was the apparent political interference of the Communist Party in politically sensitive matters (often criminal cases). There were always provisions of the criminal code which could be flexibly and opportunistically employed against the few dissidents and other people disfavored by the regime. In the words of one of the most eminent, contemporary Central-European jurists: “[I]n Socialism, according to its official ideology, jurisprudence was still dominated by rule-positivism, with the rule of brute facts only complementing it. Accordingly—and reminding somewhat of the dual-structure institutionalization of national Socialism— the enforcement of its own interests at any given time could go on freely (with brutal force, through unlawful interference or even by silencing the law), while in neutral areas of mass application the petty-minded rule of regulations prevailed.”230

It is true that Socialist legal scholarship used several Marxist phrases, but it was rather an emblematic exercise than a real scientific activity. The fact that the legal writings used political slogans from the last conference of the Communist Party did not change the positivist and simplistic attitude 228

K. Kulcsár, “The Educational Role of Law in the Socialist Society” (A Summary of K. Kulcsár, A jog nevelö szerepe a szocialista társadalomban (Közgazdasági és Jogi Könyvkiadó, Budapest, 1961)), 4 Acta Juridica (1962), 393, at 394.

229

See critically the statement of the Czechoslovak Supreme Court of 23 November 1967 (claiming that the judges did not satisfy these requirements), published in: Nejvyšší soud o občanském soudním řízení a řízení před státním notářstvím. Sborník směrnic, usnesení, rozborů a zhodnocení soudní praxe pléna a presidia Nejvyššího soudu 1965-1967 [The Supreme Court on Civil Procedure and Procedure before the State Notary. Collection of Directives, Resolutions, Analysis and Evaluation of Case Law Issued by the Supreme Court in 1965-1967] (SEVT, Praha, 1974), 92, at 143-144. For a more optimistic viewpoint see the statement of the Czechoslovak Supreme Court of 30 May 1966, published ibid., 376, at 419 (noting several unpublished examples in divorce matters when the courts did act as mentors, instructing the parties in divorce proceedings, against their will, to try to continue their relationship).

230

C. Varga, “Legal Scholarship at the Threshold of a New Millennium”, 42 Acta Juridica Hungarica (2001), 181-201, at 191 (my emphasis).

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of legal scholarship. Quite the opposite; the political slogans enhanced the prevailing unsophisticated textual positivism: the resolutions of the Communist Party quoted by Czechoslovak or East German scholars in vast numbers were conceived of as unquestionable truths (there was, of course, no critical analysis of these slogans). Similarly, one might still occasionally find references—in the case law of the 1970s and early 1980s—to the Marxist nature of legal concepts. However, the recitation of most Marxist phrases, such as class origins, became merely a routine exercise, usually without any practical significance. I doubt that interpreters seriously considered what the words they used might mean for their decision. While a criminal court in the 1950s would emphasize that the accused was of bourgeois origins and, as a result, would impose a severe punishment—even substituting the presumption of innocence for the presumption of guilt—a criminal court in the 1970s or the early 1980s would only note his or her class origins without any further consequence.231 In the late 1980s, most of these Marxist phrases disappeared altogether from judicial reasoning,232 although Marxist phrases persisted in the Socialist legal scholarship of Czechoslovakia and East Germany. After all, we must be aware that the Czechoslovak Supreme Court—in its 1974 directive—quite openly proclaimed that the judiciary was a mere instrument of the Party in implementing its own policies. “Knowledge of the actual politics of the Czechoslovak Communist Party and the enforcement of its leading role are the main conditions and guarantees of the class interpretation and application.”233 This was a quite pragmatic approach. It was not the abstract ideal of Communism which mattered: rather, “the actual” politics of the Party. This was a very strong message to the judges that they could not independently determine decisive judicial politics; rather, it was the Party—justified by its omniscience and power ‘identified with the truth’234—which was entitled to decide such matters. 231

Decision of the Supreme Court of the Czech Socialist Republic of 29 April 1974, Sbírka rozhodnutí (1974) No.48 (criminal section) (simply noting that an accused “came from a family of bureaucrats”).

232

Cf. decision of the Supreme Court of the Czech Socialist Republic of 25 September 1989, Sbírka rozhodnutí (1991) No.17 (criminal section) (in this decision, issued a mere two months before the collapse of Czechoslovak Communism, the Supreme Court mentioned only the work ethic of the accused but did not refer to his class origins).

233

Directive, op.cit. note 222, 456 (my emphasis).

234

Václav Havel, facing prosecution for his activities in the Committee for the Protection of Unjustly Prosecuted, remarked in October 1979 in his speech before the Prague Municipal Court: “A power, which identifies itself with the truth, cannot accept that

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III.3. Analyzing Czechoslovak Case Law of the 1970s and 1980s Although Czechoslovak courts continued in their new political and substantive reasoning long after the death of Stalin, Czechoslovak judges in the 1970s, at the latest, engaged in formalistic reasoning which had been so harshly rejected two decades earlier and rhetorically at least continued to be rejected. Their style of reasoning is without doubt conceptual and textual. Any discussion of substantive issues disappeared almost entirely, and references to extra-legal rules were usually lacking; any excursus on the law’s rationale was very rare. Of course, the Party kept its influence on the judiciary; ‘telephone justice’ continued to exist. There were always enough loyal judges to persecute the few dissidents, while the remaining judges changed from revolutionaries to bureaucrats of decaying totalitarianism. Revolutionary fervor and its companion—openly ideological and substantive judicial reasoning—had gone and never returned. Whereas the first Socialist judges emphasized efficiency, rationality, and the suitability of the legal solutions for the new People’s regime, and did not hesitate to breach the law openly if it was considered necessary, their Socialist successors ostensibly did not consider themselves empowered to proceed in a similar way. Instrumental reasoning, so typical for the early Socialist phase, had almost entirely disappeared. The Czech Supreme Court, for instance, resolutely punished—as illegal entrepreneurship—work performed privately by employees of a state company during their weekends on assignments which their Socialist employer was not able to handle regularly. However, this was not an ordinary shadow market activity, typical for the states of declining really-existing Socialism. The work was done for Socialist cooperatives which were not able to receive the services from the employer of the accused persons during the regular week. In the aftermath of the 1968 Prague Spring, lower courts argued that the workers had not committed any crime. In the lower courts’ opinion, the anti-societal threat of their behavior was apparently lowered by the fact that their employer would not be able to handle these tasks anyway, that their work was of high value, and that it contributed to the development of the Socialist economy. The courts also noted that Socialist cooperatives, for which the work was being performed, highly appreciated the job done by the accused persons. One might easily sense in such an argumentation an overall emphasis on the fact that the Socialist economy of scarce labor would be better off if activities such as it might commit some injustice.” See V. Havel, “Vlastní obhajoba” [Defense Speech], in: Havel, Eseje a jiné texty z let 1970-1989, Spisy 4 [Essays and Other Texts from the Years 1970-1989, Vol.4,] (Torst, Praha, 1999), 375-388, at 376.

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these were allowed. However, the Supreme Court failed to pay attention to such arguments and emphasized that they were without relevance for the criminal case.235 The thesis of the exclusivity of the written law and all-powerfulness of the texts resulted in a situation in which it was highly suspect for Socialist judges to make use of anything else. In contrast to the Stalinist era, Socialist judges in subsequent decades seldom revealed the policies and principles underlying their decisions. On the one hand, it was consistent with the anti-activist atmosphere of the post-Stalinist judicial culture and the ideology of bound judicial decision-making, as explained above. On the other hand, however, judges were still expected to perform an educational role in society, to explain to the toiling masses the rules of harmonious life under Socialism. Therefore, the lack of any policy-reasoning whatsoever was troubling for the Socialist ideologues as well as for the high judges. The Czechoslovak Supreme Court—acting as the supreme judicial ideologist—repeatedly criticized judges for not making reflections of a political, economical or morally educational nature, particularly in cases involving family, labor, and property law. The Court again and again emphasized that judicial opinions should be written in a way that the parties would be taught Socialist values, so that disputes between neighbors, matters of restitution, etc. would be avoided.236 However, the Supreme Court failed to show the lead and itself argued formalistically, without emphasizing the Socialist policies in issue even in cases which were included in the case reporter immediately following its anti-formalist critique. In fact, one is tempted to conclude that all rhetorical exercises about Socialist anti-formalism were not taken seriously even by the authors themselves. Similarly, Inga Markovits has noted with astonishment what she found in Eastern Germany. After her case study, she concluded: “Two features of this case stand out: the fact that all three courts, contrary to Socialist philosophy, sided with formal and against substantive justice and their unimaginative way of doing so. […] [A]n American court would have manipulated formal law in its search for justice, and with a perfectly good conscience, too. Socialist judges probably were too cautious and respectful to do so. As one West German judge said about his new East German colleagues: ‘They lack interpretive courage’.”237

235

Decision of the Supreme Court of the Czech Socialist Republic of 9 September 1971, Sbírka rozhodnutí (1972) No.34 (criminal section). A similar example can be seen in another decision of the Czech Supreme Court of 29 May 1981, Sbírka rozhodnutí (1982) No.4 (criminal section).

236

See the statement of the Czechoslovak Supreme Court of 23 November 1967, op.cit. note 229, 144, 149.

237

Markovits, op.cit. note 169, 2302.

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The same level of formalism applies even in cases of crimes against society, such as the very frequent prosecutions for parasitism. Unlike their Stalinist counterparts two decades earlier, in such cases the courts reasoned formalistically; they did not attempt to teach the prosecuted parasites what to do, how to avoid their unwelcome situation, or where they were likely to find a job. Instead, textual positivism apparently prevailed even in the frequent prosecutions for parasitism.238 Formalism was also predominant in the adjudication of political crimes. An example from Czechoslovakia is a 1981 decision of the Prague Municipal Court in the case of Mr. Gruntorád.239 He belonged to that small, elite group of Czech and Slovak dissidents who were not willing to collaborate with the regime as most of their fellow citizens did. He was not a novice before this criminal court: several years previously, he had been punished for unlawful possession of a gun: it had been carefully planted in his house by the secret police before being ‘found’ there during a search of his home. In the spring of 1981, police once again entered his dwelling in Prague in order to find something else on him. This time they only managed to find numerous poems and books, including Orwell’s 1984, all of which had been banned by the Communist regime. They also found copies of censored poems, allegedly distributed by Mr. Gruntorád, including also those of Jaroslav Seifert, who three years later would become the first Czechoslovak winner of the Nobel Prize for literature. Yet in the court’s view, this conduct alone justified his prosecution for subverting the Republic, one of the most serious crimes in the catalogue of Communist criminal offenses. The judges did not have the least difficulty in sentencing Mr. Gruntorád to four years imprisonment. In their long, formalistic decision, they simply provided a detailed list of the books, poems and other materials found in his house and—without any further reasoning—concluded that all these materials were hostile to the Socialist society. Considering the accused’s previous criminal record and his open anti-Socialist orientation, in their opinion the punishment was proportional. The court crowned its judgment, which was almost entirely unresponsive to the arguments made by Mr. Gruntorád, by refuting one of his arguments in a peculiar way, characteristic of Communist propaganda. Mr. Gruntorád’s defense 238

The published court reports in the 1970s are replete with cases of parasitism. Cf. decisions of the Supreme Court of the Czech Socialist Republic of 27 September 1971, Sbírka rozhodnutí (1972) No.9 (criminal section) and of 25 October 1971, Sbírka rozhodnutí (1972) No.10 (criminal section) (dealing with problems of the crime of parasitism in an entirely textual way).

239

Decision of the Prague Municipal Court of 9 July 1981 sign. 1 T 15/81, (unpublished, from the Archive of Libri Prohibiti, Praha).

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that he could not be punished for disseminating artistic literature, as that would be a violation of the human rights treaties ratified by Czechoslovakia, was rebuffed by the court in the following manner: “[W]here else is the declaration of human rights better realized than in Socialist countries; the best conditions for their realization are found in these countries because the exploitation of man by man has been eliminated here.”240

Apart from this rather absurd remark, in this decision the court exhibited remarkable indifference to the nature of the case, as it made no effort to ‘reeducate’ the accused, as was expected from Socialist judges. Without doubt, this was an example of judicial personality hiding behind the letter of the criminal code. In criminal cases, however, the lack of substantive reasoning was mostly to the benefit of the accused persons. Otherwise, facing reallyexisting Socialism, legal form might have been filled with the only ‘substance’ available, i.e., fossilized Marxism-Leninism and current Communist Party policies. This would mean harsher penalties for the ‘enemies’ of the people and much greater misuse of the judicial machinery than that which was occurring on a daily basis in the states of declining, really-existing Socialism. The Stalinist judiciary also proved its instrumentality in the fact that the judges sometimes did not hesitate to find the right interpretation in the country of the ‘model’ Socialist law: the Soviet Union. In contrast, the concept of law of the 1970s and the 1980s consisted of acts enacted by parliament or decrees promulgated by administrative authorities. Hence, if law is conceived of in such strict terms, then nothing but the text of the law can play a role in interpretation.241 As a result, in the 1970s and 1980s any Socialist ‘comparative’ argumentation completely disappeared.242 One might continue citing such examples of the gap between ideological claims and actual practice. For instance, in the face of increasing delays in civil litigations during the 1980s, the Czechoslovak judicial administration prescribed a maximum percentage of cases older than five years at any one court. These percentages, as one judge now recalls, were reached without problem, although at the expense of deciding the excess cases in 240

Ibid., 26.

241

Cf. Dawson’s remarks on the French doctrine of the early nineteenth century: “The academic profession in France […] admitted only one proper source for its attention— the text of the law. It was there that one could discover the only authentic source of law, the will of ‘the legislator’.” J.P. Dawson, The Oracles of the Law (The University of Michigan School of Law, Ann Arbor, MI, 1968), 393.

242

I have been unable to locate any judicial decision taken in the 1970s and 1980s in Czechoslovakia which makes use of socialist ‘comparative’ law.

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an absurd way.243 Perhaps it is here that one should look for the origins of the phenomenon which post-Communist judges apply on a massive scale: they hesitate to go into the merits of a case and prefer to get rid of cases on exclusively formalist and, often absurd, grounds. The requirement of the centralization of judicial decision-making was achieved by another invention of the Socialist regimes. Immediately after the Communists seized power, the extensive semi-private reporting of many judicial decisions—which had a long tradition in the countries of Central Europe dating back to the 1850s in the Austrian monarchy—was abandoned. The private reporters were replaced by official state reporters, which, however, covered only a small portion of judicial decisions, including only those carefully scrutinized by the editorial body of the reporter—later, also in co-operation with the ministries and law faculties. A novel idea was to carefully pick out the ‘right’ decision through a secret process.244 That is why, in contrast to the previous situation, only a small fraction of the cases were being published, so that most case law remained unknown. Even more importantly, this change represented a radical break with Western legal culture, where ‘right’ decisions are determined through what one might call a process of rational discourse: through case decisions in conjunction with legal scholarship. In Communist Europe, suddenly, the Party claimed a monopoly even over this process. Yet, the fear of publishing ‘wrong’ decisions has survived the fall of Communism. One phenomena almost unknown in the Western world appeared in the Socialist states of Central Europe. Following the Soviet model245 and the emphasis on centralism and formalism, the supreme court—in all Central European countries during the Communist rule—had the power to issue guidelines and interpretative statements dealing with important legal questions, which were done in abstracto, without any case pending before the court. Many of the directives were long treatises analyzing the correct and incorrect applications of the specific law by lower courts within some period of time without taking into account particulars of the case at hand. In some states, such directives were formally binding on the lower courts.246 243

J. Vyklický, “Úvahy o soudnictví” [Meditations on the Judiciary], Soudce (2001) No.6, 3, at 5.

244

In East Germany the official reporting of the complete set of the Supreme Court’s decision was discontinued in 1977. Markovits, op.cit. note 150, 819, 865.

245

On Soviet interpretative statements, cf. A.Kh. Saidov, Comparative Law (Wildy, Simmonds & Hill, London, W.E. Butler transl. & ed. 2003), 206 (translation from the 2000 Russian original).

246

In Hungary, cf. a critical evaluation from the point of sources of law, P. Schmidt,

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Lacking proper interactions between legal scholarship and the judiciary, these statements in a sense served as a substitute for it—attached to a strong, and of course, centralized and formal authority. One of the rare occasions when the judges in Socialist Central Europe could speak freely (the 1968 Prague Spring) revealed that precisely this power of the supreme courts was considered to be a danger to judicial independence.247 Despite this new Socialist institution (or perhaps because of it?), any lawmaking function in the courts continued to be rejected by Socialist legal scholars.248 In my opinion, the existence of these guidelines contributed to the emphasis on the ‘unrestrained’ principle of judicial independence after the fall of Communism.249 Some legal academics often refer to the experience with these supreme court guidelines and interpretative statements and argue that—if the binding force of Constitutional Court decisions were accepted—the same experience as during the Communist era would be repeated.250 III.4. Constructing the Concept of Limited Law It would be naïve to search for the reasons for Socialist textualism solely in the judiciary itself. With some exceptions, the scholarly world of Socialist legal scholarship became banal. One typical feature of the post-Stalinist judiciary was its emphasis on the written law. In this sense, legal scholarship disregarded anything else—including, for instance, law’s efficacy, the policy surrounding the text (I mean the real policy, not the ideological “Konstitutsionno-pravovye voprosy sistemy istochnikov prava VNR” [Constitutional Problems of the Hungarian System of Sources of Law], 27 (1-2) Acta Juridica Academiae Scientiarum Hungaricae (1985), 133-160, 146-148. In Poland, cf. Rzepliński, op.cit. note 140, 163ff. 247

A. Bajcura, “Výsledky ankety o postavení sudcov” [The Results of the Poll on the Status of Judges], 51 Právný obzor (1968), 834, 835.

248

K. Fürész, “Die verfassungsmäßigen Probleme der Rechtsbildung der Rechtsanwendungsorgane (richterlich gestaltetes Recht) in der ungarischen sozialistischen Rechtsentwicklung”, 27 (3-4) Acta Juridica Academiae Scientiarum Hungaricae (1985), 377-402 (a critical evaluation of this topic in the late period of Socialism). Cf. an article by the sophisticated Hungarian comparatist, G. Eörsi, “Richterrecht und Gesetzesrecht in Ungarn. Zum Problem der Originalität eines Zivilrechts”, 30 Rabels Zeitschrift für ausländisches und internationales Privatrecht (1966), 117.

249

F. Emmert, “The Independence of Judges – A Concept Often Misunderstood in Central and Eastern Europe”, 3 European Journal of Law Reform (2002), 405.

250

V. Mikule and V. Sládeček, “O závaznosti rozhodnutí Ústavního soudu” [On the Binding Force of a Decision of the Constitutional Court], Bulletin advokacie (1995) No.8, 35.

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clutter recited in books), judicial decisions, customary practices, established conventions, etc. In this respect, post-Stalinist legal scholarship did not differ greatly from the early Austrian style of legal exegesis of the nineteenth century, but its rationales were different. In this section, I will show that the new Socialist positivism was a mix of some selected Marxist clichés, intellectual impotency and ideological emphasis on centralized law-making authority. III.4.1. Legal Education Many features of Socialist legal education were not unlike those found in many Continental law faculties. The training was rigid, authoritarian, and formalistic; the state maintained control over the curriculum, and there was an almost complete absence of analytical study of case law.251 Emphasis was placed on memorization rather than on the ability to think and analyze; students were not trained in legal argumentation. What really distinguished Socialist academia from its Western counterparts was the fact that many of these elements—such as state involvement—were much stronger than in the West. The most distinctive feature was, however, the all-pervasive nature of Marxist-Leninist doctrines.252 Polish academics indicate that from the 1960s through the 1980s, Polish legal academia and law faculty curricula preserved some basic continuity, including some old-fashioned features of the Continental style of education.253 Most of the law classes offered at Polish universities were similar to those offered at law faculties in any Western European university. Legal scholarship could develop in Poland without excessive ideological intrusion. During the last three decades of Communist rule, Polish legal academia included many excellent scholars.254 However, many other excellent scholars—annoyed by the oppressive regime and its inability to assure acceptable conditions for the social sciences—left the country. 251

Cf. the Italian system of legal education, F.P. Ruggeri Laderchi, “Report on Italy”, in: A.M. Slaughter, A. Stone Sweet, and J.H.H. Weiler (eds), The European Court and National Courts: Doctrine and Jurisprudence (Hart Publishing, Oxford, 1998), 147-170, at 150: “It is only recently that lawyers have started studying and quoting in their pleadings case law. The study of case law is still exceptional in Italian universities.”

252

D.J. Meador, Impressions of Law in East Germany. Legal Education and Legal Systems in the German Democratic Republic (University Press of Virginia, Charlottesville, VA, 1986), 104 (describing East German academia).

253

On the attempts to modify these features, cf. J. Baszkiewicz, “O modernizacji studiów prawnych i administracyjnych” [On the Modernization of Legal and Administrative Studies], 30 (4) Państwo i Prawo (1975), 28.

254

For example, the renowned scholars, Jerzy Wróblewski, Zygmunt Ziembiński, Krzysztof Skubiszewski and many others.

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Polish professors observed that “curricula in Polish law faculties during the Socialist era were never as doctrinaire as those offered in the Soviet Union, Czechoslovakia, or Eastern Germany”. In their opinion, “the lack of Communist dogma in Polish law school curricula is just one indicia of Poland’s relative independence from the Soviet Union during the Socialist period, at least when compared to the more repressive atmospheres in some other Eastern European countries.”255

In contrast, Czechoslovak and East German law faculties were overwhelmed with non-legal ideological subjects of Marxism-Leninism, which encompassed about one-third of the total study period.256 The study of law was made openly political, as various Marxist and quasi-Marxist slogans on the superiority of the Socialist system, its law and Socialist legality permeated the whole program of study. The Czechoslovak Communist Party had control over academics; their promotion depended closely upon the decisions of the party apparatus. However, as the belief in Communist ideals vanished rapidly, the extensive education in Marxism-Leninism turned into an unpopular exercise in the ability to memorize boring phrases without attempting to understand their content. Marxism was practiced as a set of quotations, without any serious effort to grasp their meaning.257 The dogmatic style of this education contributed to strikingly formalist features of Socialist legal education. Legal scholarship had lost its continuity. When a prominent American scholar of Czech origin, Eric Stein, arrived in his homeland in the early 1990s, he faced a number of problems in mutual understanding with his Czech fellows. On the one side, he was an expert on federations and transnational systems, educated in Prague before World War II but living in the United States since 1940; on the other side were the members of the domestic Slovak and Czech academia. They simply differed in their understanding of certain key terms of constitutional law. In Stein’s opinion, this lack of consensus on elementary concepts of legal discourse made it

255

Z. Gostynski and A. Garfield, “Taking the Other Road: Polish Legal Education During the Past Thirty Years”, 7 Temple Int’l & Comp. L.J. (1993), 243, 260.

256

For the situation in East Germany, I.S. Markovits, Imperfect Justice. An East-West German Diary (Clarendon Press, Oxford, 1995), 43; and id., op.cit. note 237, 2276. For more details on East Germany, see Meador, op.cit. note 252, 72ff.; and S. Schröder, “Die Juristenausbildung in der DDR”, in: Bender and Falk, op.cit. note 140, 441ff., 462ff.

257

J. Beňa, “Law Education in Czechoslovakia in the Years 1945-1989 with a special focus on the Comenius University, Bratislava”, in: Bender and Falk, op.cit. note 140, 402, 406.

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difficult to find a sensible compromise between legal experts and, thereby, also contributed to the end of the Czechoslovak Federation.258 III.4.2. Socialist Scholarship The Socialist concept of law consisted of acts enacted by parliament or decrees promulgated by administrative authorities. As we have pointed out above, Stalinist scholarship, on its formalist side, was obsessed by the search for the proper definition of law. Law, as the Stalinist scholars claimed, was “the aggregate of the statutes that have been—and are being—promulgated by the state”.259 According to the Stalinist definition, influenced by Andrei Vyshinsky, which more or less persisted in Central Europe throughout the Communist era: “[l]egal norms are those rules of human conduct established or affirmed by the state, whose coercive force guarantees their being put into operation. […] Law thus consists of rules of conduct whose observance is guaranteed by the coercive force of the state.”260 After Stalin’s death, Socialist positivism gained further momentum in the Central European legal discourse. The most important Socialist scholar in Czechoslovakia, Viktor Knapp, claimed that law was nothing other than a “set of legal norms”.261 In Hungary, a prominent textbook defined Socialist law as follows: “Socialist law […] a) is the systematized sum total of norms of behavior created (and sanctioned, if necessary), by the Socialist state; b) these norms adequately correspond to the general interests defined by the material living conditions of the working class and of working people in general and they express the will of the class aiming at the realization of these interests in the form of the manifest state will; c) Socialist law promotes the defense and further development of Socialist means of production and other societal relations based on them and ultimately the building of communism, the classless society; d) as Socialist law in its totality corresponds to the general interests and will of the working people, its realization is increasingly characterized by voluntary observance; the Socialist state, by way of creating the suitable norms of 258

See E. Stein, Czecho-Slovakia, Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (The University of Michigan Press, Ann Arbor, MI, 1997), 99, 334, who commented in relation to the efforts to draft a new constitution for the Czechoslovak Federation that “[i]gnorance of modern legal thought and attachment to obsolete positivist ideas hampered the discourse”.

259

Yudin, op.cit. note 120, 286.

260

Golunskii and Strogovich, op.cit. note 173. 368-369. The authors summarized their positivist definition (at 370) while adding in some ‘Marxist’ criteria: “Law is the aggregate of the rules of conduct (norms) established or approved (sanctioned) by state authority, expressing the will of the dominant class, as to which the coercive force of the state guarantees their being put into operation to the end of safeguarding, making secure, and developing social relationships and arrangements agreeable and advantageous to the dominant class.”

261

Knapp, op.cit. note 215, 21.

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Socialist law and by the application of these norms exercises educational influence upon the workers towards their voluntary observance of these rules of behavior, in the meantime the realization of these norms is ultimately sanctioned by the compelling force of the Socialist state.”262

This definition illustrates the perversion of Marxism which occurred in the totalitarian states of the Eastern bloc. We can see the confusion of the prima facie positivist and textualist definition of law with several pseudoMarxist ideological postulates which were treated as if they were facts. Curiously, Socialist legal scholarship—at least rhetorically based on the Marxist critique of society—eliminated sociological elements from legal scholarship.263 Thanks to the supra-scientific ‘ersatz-divine’ character of these postulates, the law was immune to any critique. “[L]egal regulation, simply due to the fact that it was created, is correct and realized as well. […] Thus the sole cause of its failure can be—as Marx remarked ironically, when he referred to the law making ideas of Frederic William IV—the ‘clumsiness of the world’.”264 It might be fairly said that, in Socialist law: “The possibility also practically disappeared of including an analysis of the actual social effect in the theoretical definition of the functions of Socialist law, a comparison of the law with it. This ran the risk of bringing forward an apologist’s view in respect of the existing Socialist legal systems, leaving jurisprudence with hardly any other role but to provide explanations justifying positive law, while the study of the conditions for continued evolution, including a criticism of existing law, would be relegated to the background.”265

In fact, Socialist legal scholarship and its conception of law achieved the realization of the theory of ‘pure Socialist law’ by taking into account nothing but the text of law under the veil of several Marxist clichés. A leading Hungarian textbook of the 1960s declared this openly: “Socialist law […] acknowledges only written law as a source. […] in Socialist law it is necessary to aim at the exclusiveness of written law, and Socialist law, in the course of its development strives to eliminate all kinds of unwritten legal sources. […] Socialist law, deriving from its essence, can acknowledge only written law to be the sole correct form of legal sources. This means that effort towards the exclusiveness of the written source of law is the basic principle of the legal policy of Socialist legal life, i.e. a theoretical thesis to be asserted and increasingly realized in the legal life.”266

262

I. Szabó, A Szocialista Jog [Socialist Law] (Közgazdasági és Jogi Könyvkiadó, Budapest, 1963), 63, quoted and translated in: K. Kulcsár, “Politics and Law-Making in Central-East-Europe”, in: Z. Péteri (ed.), Legal Theory—Comparative Law: Studies in Honour of Professor Imre Szabó (Akadémiai Kiadó, Budapest, 1984), 179, at 202.

263

Ibid., 205.

264

Ibid., 203.

265

Szabó, op.cit. note 123, 52.

266

Szabó, op.cit. note 262, 204.

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Let me cite several examples. In Socialist society, law was created solely through the process of ‘intentional, organized, planned activity’, where a crucial role was played by the leading force in the society: the Party. Because custom or any established usage did not satisfy these formalist and centralized criteria, it was excluded from the orbit of Socialist law. Only after the state withers away was custom supposed to play a crucial role in the utopian Communist society.267 Unless expressly stated in the preambles of the Socialist constitutions or codes, or at least mechanically deducible from statutes, legal principles did not form part of Socialist law. Legal principles expressly enumerated in statutes were the only type of legal principles in Socialist law, but even these principles played a rather rhetorical role.268 There were no unwritten principles of law. Even if such principles had existed, they would never have become binding in the system of written Socialist law, a Socialist scholar had noted.269 Since World War II, precedent has become a very important source of law in Western Europe. New debates on precedent and the role of case law appeared, disturbing the classic Continental concepts.270 Socialist legal theory, in contrast, continued to reject any role for precedent. Ideologically, the very concept of precedent went against the ideals of a centralized society. For instance, in Czechoslovakia the possible role of precedent was denied by a leading legal philosopher of the 1960s, who noted that for precedent to be a source of Socialist law would go against the principle of democratic centralism;271 to put it more bluntly, against centralized law-making, fully controlled by the Communist Party. In his view, judge-made law was incomprehensible, beyond the reach of the vast 267

Boguszak, op.cit. note 216, 144ff.

268

See Szabó, op.cit. note 123, 64.

269

J. Čapek, “Interpretace socialistického práva” [Interpretation of Socialist Law], Acta Universitatis Carolinae Iuridica, Monographia XL (1983), 29ff.

270

See H.W. Baade, “Stare Decisis in Civil Law Systems”, in: James A.R. Nafziger and Symeon C. Symeonides (eds.), Law and Justice in a Multistate World. Essays in Honor of Arthur T. von Mehren (Transnational Publishers, Ardsley, NY, 2002), 533-554 (offering a historical analysis of the problem); or id., “Stare Decisis in Civil-Law Countries: The Last Bastion”, in: P. Birks and A. Pretto (eds.), Themes in Comparative Law. In Honour of Bernard Rudden (Oxford University Press, Oxford, 2002), 3-20 (describing a contemporary deconstruction of the classical concept of non-binding decision on the Continent). A very good doctrinal analysis in the Austrian conditions might be found in Bydlinski, op.cit. note 11, 501-552 (speaking about ‘Präjudizienrecht’, ‘Richterrecht’ and ‘subsidiären Verbindlichkeit des Präjudizienrechts’, i.e., case law, judge-made law and the subsidiary binding force of judicial precedents).

271

Boguszak, op.cit. note 216, 148. Exactly the same point has been made by Inga Markovits; see Markovits, op.cit. note 124, 612, 613 (at note 4).

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masses of the population. It would prove harmful to Socialist legality to use judge-made law as a source of law.272 Following the same line of reasoning (incomprehensiveness of judgemade law and the exclusiveness of statutory law as the only tool of the planned development of society), the Hungarian comparatist, Gyula Eörsi, emphasized that the Socialist legal system was composed exclusively of written law:273 “Socialist democracy […] demands that all citizens, and not only jurists, be able to familiarise themselves with the system of at least the most important rights, obligations, requirements.”274

Court practice followed the doctrinal thesis, and—with the sole exception of the more sophisticated Polish system275—citation to precedents remained haphazard and comparatively much less common east of West Germany. East German,276 Hungarian277 and Czechoslovak judges278 quoted precedent only exceptionally and unsystematically. In fact, as many cases of the lower courts remained relatively easy as a matter of legal interpretation,279 it was quite possible that the need to rely on precedents was not felt very strongly by judges; this attitude might have been also automatically been transferred to the few more problematic cases. III.4.3. Static Interpretation of the Law Statutory interpretation was not a subject of study at the law faculties. Socialist theory neglected this topic, and the interpretation of the law was always presented as a simple cognitive operation. A Czech Constitutional Court Justice, Pavel Holländer, one of the most outstanding lawyers in Central Europe today, has critically noted that Czech and Slovak doctrine has been lacking a treatise on legal interpretation for more than fifty 272

Boguszak, op.cit. note 216, 148.

273

Eörsi, op.cit. note 295, 547.

274

Ibid., 547.

275

A brief glance at the Polish case reporter reveals the fact that case law was cited in Poland rather frequently.

276

On the citation of precedent and other materials by courts and lawyers in East Germany, cf. Markovits, op.cit. note 169, 2301ff.

277

For the Hungarian practice of the late 1970s, see B. Pokol, The Concept of Law. The Multi-Layered Legal System (Rejtjel Edition, Budapest, 2001), 72-74 (noting that, in 1977, the Supreme Court made no reference to precedent civil cases; as reference was more common in criminal cases, out of twenty criminal cases, it made reference to precedent in only one of them).

278

Czechoslovak judges usually cited precedent only in important decisions of the Federal Supreme Court of Czechoslovakia which had to resolve discrepancies between the Czech and Slovak judiciaries.

279

See my explanation in Chapter 2, notes 125-127 and the accompanying text.

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years.280 All throughout the region, publications on legal methodology were rare,281 and a discussion of creative judicial decision-making was almost entirely lacking—save for some remarkable Polish accomplishments.282 Any supplementary interpretation done by a judge was conceived of as prima facie harmful or, at best, suspicious. Scholars often failed to appreciate that the meaning of a text might be reached either through the deductive process or through substantive evaluation.283 However, only the former is a more or less mechanical process. That is why the Socialist theory of interpretation remained remarkably static and lacked dynamic elements.284 This static notion of legal interpretation was supported by the overall atmosphere of the ideology of bound judicial decision-making, where interpretation appears to be a product of logical deduction, although no one has put forward a serious explanation as to how this logic in fact works. Therefore, legal interpretation appeared to be an easy task, for which there was always either a right or a wrong solution. The very fact that the courts in Socialist legal systems dealt with much easier legal issues than their Western counterparts seemed to support this thesis. Any complex method of legal interpretation, such as those based on teleological arguments, the purpose of the law, etc., was approached with suspicion. According to Socialist scholars, teleological interpretation: 280

P. Holländer, Ústavněprávní argumentace. Ohlédnutí po deseti letech Ústavního soudu [Constitutional Argumentation: A Look Back at the Constitutional Court’s First Ten Years] (Linde nakladatelství s.r.o., Praha, 2003), 62-63 (noting that “generations of Czech lawyers have been educated with the using the simplest form of the cognitivist model of law application”).

281

For a critical view on this deficiency in Hungary, see K. Fürész, “Die verfassungsmäßigen Probleme der Rechtsbildung der Rechtsanwendungsorgane (richterlich gestaltetes Recht) in der ungarischen sozialistischen Rechtsentwicklung”, 27 Acta Juridica Academiae Scientiarum Hungaricae (1985), 377-402.

282

See, above all, Wróblewski, op.cit. note 165 (this was the first edition, followed by several later Polish versions, and was the basis for the 1992 English translation). There is no counterpart to this masterpiece in the Czechoslovak literature, save for the much less ambitious 1967 work of Knapp, op.cit. note 107, 66ff. Knapp emphasized the dynamic aspect of the application of law, but this work was published only one year before the 1968 Soviet invasion; in the stagnation of social thought which accompanied the new wave of Communist orthodoxy between 1969 and 1989, the thoughts in this work were rarely appreciated.

283

The late Aleksander Peczenik has spoken about the difference between transformation and deduction. While the latter is a logical process, the former might rest on logical reasons but involves at least one step which goes beyond strict logic, and the reasoning in that process shades into evaluation. Peczenik, op.cit. note 89, 116ff.

284

On this, see critically already Wróblewski, op.cit. note 165, 26ff.

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“is just dodging, a technique developed by bourgeois lawyers at the end of the last [nineteenth] century to meet timely needs, since the legal conclusions can only be drawn from the actual wording of the law, that is, the meaning can be defined exclusively from and through the normative text.”285

Therefore, textual arguments are doomed to control legal interpretation. Unlike the teleological (purposive) approach, arguments based on the letter or ‘logic’ of a statute add nothing to the text from without.286 Socialist scholars—imprisoned in their concept of limited law—wondered where one can find the rationale of the law if it is not expressly stated in the text of the law itself? Their own reply was that such a rationale cannot, and should not, be used by judges.287 After all, there would be no need to interpret the law in this way if the legislature performed its job properly, thereby resolving issues rather than leaving them to judges.288 Therefore, it is no coincidence that in the textbook Obecná teorie státu a práva (General Theory of State and Law)—written at the peak of the Czechoslovak normalization of the 1970s—teleological interpretation or any argument based on the purpose of the law is strikingly absent. 289 After all, as one Czechoslovak scholar had explained to his readers, there would be no need to interpret the law in this way if the legislature performed its job better, thereby solving the case instead of leaving it to the judge.290 What confirms a previous analysis of the ideology of bound judicial decision-making is the fact that the revolutionary French concept of référé législatif appeared in the Communist legal systems. For instance, the 1948 Czechoslovak Constitution, following the 1936 USSR Stalinist Constitution,291 empowered the Presidium of the National Assembly to interpret laws and to judge their constitutionality.292 All Communist 285

I. Szabó, A jogszabályok értelmezése [The Interpretation of Statutory Rules] (Közgazdasági és Jogi Könyvkiadó, Budapest, 1960), ch.II, 104ff.; quoted in: Varga, op.cit. note 37, 159.

286

Ibid., 159.

287

Čapek, op.cit. note 269, 77.

288

Ibid.

289

E. Kučera (ed.), Obecná teorie státu a práva, Díl II. [The General Theory of State and Law, Vol.II] (Orbis, Praha, 1977), 275-283.

290

Čapek, op.cit. note 269, 77.

291

See Art.49 (b) of the 1936 Stalin Constitution and A.Y. Vyshinsky, The Law of the Soviet State (Macmillan, New York, NY, J.N. Hazard intro. and H.W. Babb transl. 1951), 339 (the power was vested in the Presidium of the Supreme Soviet). For a translation of the 1936 USSR Constitution, see F.J.M. Feldbrugge, The Constitutions of the USSR and the Union Republics: Analysis, Texts, Reports (Sijthoff and Noordhoff, Alphen aan den Rijn, The Netherlands, 1979).

292

See Art.65 of the 1948 Czechoslovak Constitution.

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textbooks dealt with this so-called ‘authentic’ interpretation’, i.e., the binding interpretation made by the law-maker itself.293 As in all other regimes of that type, however, the use of that provision in practice was negligible; moreover, in Communist regimes, real power was not hidden in the presidiums of parliaments but, rather, in the central committee of the Communist Party. III.4.4. Western Law as Seen by Communist Lawyers The identification of law with the text of statutes meant that Socialist scholars and judges always claimed that—unlike their Common-Law counterparts—they were operating within a system of ‘written law’. Many of them might have even perceived their position as an act of courage, because they emphasized in this way their affiliation to the Continental system; at the same time, they were able to condemn what they believed was the primitive and reactionary nature of law in the much more dangerous ‘imperialist’ nations, such as the United States and Great Britain. However, the crucial problem was that they posited a simplified ideal of the Western Continental legal tradition itself—including some frozen and old-fashioned concepts of judicial activity prevailing in much of Socialist legal scholarship, having their roots in pre-Socialist doctrines prevalent before World War II. Although Socialist legal scholarship did take intellectual trends in Western legal scholarship into account, it held onto the ideas of the Continental Law from the nineteenth century and missed the subsequent development of legal thought which took place over a substantial part of the twentieth century.294 Consequently, ignorant authors were able to continue this simplistic way of thinking about the law; they adhered to a formalist conception of law with some addenda of Marxist slogans and notions. On the other hand, there were also sophisticated authors who were fully aware that judges played a vital role in lawmaking in Western Continental legal tradition. These authors, however, understood this fact as further proof of the decay of Western bourgeois society. While capitalist societies came increasingly to depend on their judges, Socialist societies were heading towards a happy Communist future thanks to their planned legislative policy. A prime example of a sophisticated Socialist author was the most important Hungarian comparatist of that period: Gyula Eörsi—to whom the reader has briefly been introduced above and whose thesis I will deal 293

Cf. Vyshinsky’s textbook quoted op.cit. note 291.

294

See the description of development of bourgeois legal scholarship by Jawitsch, op.cit. note 117, 105ff., placing emphasis on early twentieth-century Western legal scholarship.

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with in detail. In his major work on comparative private law dating from 1970, he described quite accurately the process of judicial lawmaking in Western nations, emphasizing the role of the general clauses of the codes.295 He observed that the extent of their importance turned these general clauses into “rubber rules leading to the ‘duality of law’”.296 Eörsi says: “Court practice based formally on codes, drifted far away from the codes in the course of its endeavour’s to adapt itself and exercised its effect contra legem. […] This considerably loosened up legality. In this situation, the integration of the general clauses into the codes formally legalised the judgment against the other parts of the code, restored legality formally, and with it put law development into the hands of judges even in a codified system.”297

Eörsi underlined that the role of these clauses and judicial activism was a product of the internal crisis of bourgeois society and its law: “[…] the original rules of the codes and the detailed rules of the judge-made law reflect an earlier phase of capitalism, while the general clauses characteristically admit the permissive, compromising, exception-recognising, and resolution-loosening rules of modern capitalism which, in leaving the bases of private property untouched, try to find solutions for manifestations going beyond private property, in the interest of the class of private proprietors.”298

Some of Eörsi’s arguments might be supported by contemporary critics of the expansion of the judicial power or analysts of the recent trends of Western legal and societal development.299 However, it is very different to argue in this way in the atmosphere of doctrinal Western pluralism, on the one hand, and in a state of a one-party dictatorship on the other, where the doctrine of judicial passivism almost became an official state ideology. Eörsi argues quite plausibly that in Western society the judge became ‘a social politician manipulating the instruments of jurisdiction’, pressed to balance and decide different interests of the bourgeois society for which judges lacked sufficient knowledge and expertise.300 After observing the basic convergence of both main legal cultures—judicialization of the Continental culture and the increasing role of statutory law in the Common-Law culture—Eörsi argued that the reasons for this phenomenon, as well as the condemnation of both systems, lay in ‘the reasons 295

On this point, see G. Eörsi, Comparative Civil (Private) Law. Law Types, Law Groups, the Roads of Legal Development (Akadémiai Kiadó, Budapest, 1979), 542.

296

Eörsi, op.cit. note 220, 30.

297

Eörsi, op.cit. note 295, 478.

298

Ibid., 477.

299

Cf., for instance, Unger, op.cit. note 32, 192-200. Unger analyzes “the disintegration of the rule of law in postliberal society”; the processes of administrative and judicial discretion and the spread of an activist state “encourage the dissolution of the rule of law, at least insofar as that form of legality is defined by its commitment to the generality and autonomy of law”. Ibid., 200.

300

Eörsi, op.cit. note 295, 545.

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lying outside these two methods of development of law’, i.e., in monopoly capitalism itself.301 Eörsi admitted that the ‘technical crisis’ of the proper relation between statutory law and judicial decision-making also existed in Socialist society. However, Socialist society was able to resolve this problem. The reasons for this superiority rested—as was usual in Socialist rhetoric— on the ‘fundamentally different nature’ of Socialist society. In relation to this argument as all others, the typical Socialist line of reasoning begins with the presentation of ideological claims as facts. In my opinion, what is important for the present situation, however, is an openly proclaimed legislative optimism—a belief that it is only up to the (Socialist) legislature to say what the law is and that it is conceptually possible to determine law in the (Socialist) codes. In Eörsi’s opinion, Socialist society was internally coherent; therefore, the interests of the state and its population were identical. The development of Socialist society was scientifically planned, using scientific prediction of future developments, which made “it much easier for the ruling class to shape its will […] in codes”.302 Hence, the only reason for the existence of judge-made law in Western societies seems to be the divergence of interests between the ruling class and the population. Viewing the relation between the law and legislation in this way, it is only natural that an ‘omni-solving’ legislation is conceptually possible. For future post-Socialist development, a particularly problematic conclusion relates to the alleged role of general clauses in Socialist law. Eörsi claimed that they were not supposed to ‘double the law’,303 which for practical purposes meant that their normative significance was limited—or even nil. He emphasized that the use of general clauses in Western Europe and the United States had enabled them to avert undesirable outcomes provided for in the letter of the codes but, also, endangered the very notion of legality and legal certainty.304 301

Ibid., 545ff. Similarly, the Soviet legal philosopher viewed the rise of judge-made law in Western Europe as a reaction of conservative and fascist groups which feared popularly elected legislatures. See Tumanov, op.cit. note 108, 102. For a sophisticated leftist view in the early twenty-first century cf. R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, Cambridge, MA, London, 2004) (basic ideas are similar, although Hirschl’s claims are much more persuasive than those which Tumanov made in dogmatic Communist language).

302

Eörsi, op.cit. note 295, 547.

303

Ibid., 477.

304

Ibid., 478 (quotations omitted). Cf. the early critique in Germany by J.W. Hedemann, Die Flucht in die Generalklauseln: Eine Gefahr für Recht und Staat (J.C.B Mohr, Tübingen, 1933) (arguing that judges are trained to work with the traditional rules of codes, so that they are unlikely to apply these abstract general clauses skillfully).

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In contrast, the Socialist general clauses were not included for the purpose of instructing judges to decide against the letter of the codes; rather, they proclaimed a sort of propaganda, indicating the general policies which were presumed to be disclosed in a more concrete way in the detailed provisions of the codes. “General clauses are guiding lights for the system of the entire law and do not become antagonistic with detail rules.”305 The only exception, in Eörsi’s view, was the early Socialist period when they were used in the era of the class struggle and the transformation from a capitalist to a Socialist society.306 Similarly, another prominent Hungarian Socialist legal scholar, Imre Szabó, underlined that distinction. “[T]he purpose of [Socialist] legislation is not to camouflage the will of the ruling class. It follows that the idea and the role of legislative interpretation are necessarily limited, since the will of the legislators does not allow, either at the time of promulgation or later on, that the substance of the legal rules be changed under the pretext of interpretation, or that there be introduced into the law by means of a so-called interpretation according to its spirit any element foreign to it. […] In bourgeois laws, the judge has become the pivot of the legal system. Socialist evolution has not made this error. Any remedial ‘interpretation’ is contrary to the principles of Marxism-Leninism.”307

For this reason, even if the written law itself made recourse to unwritten rules (for instance, rules of Socialist morality, etc.) or even the interest of Socialist states, it was unlikely that these rules would be invoked in judicial thinking and argumentation. The only exception was in the area of political crimes where—in order to enable the state to prosecute any ‘anti-state’ activity which it felt threatened its interests—intentionally vague provisions were incorporated within the heart of the operative facts of the norm. Thus, for instance, anyone ‘who caused a public scandal’ was engaging in the crime of ‘hooliganism’. Such a loosely-worded crime offered a convenient passage for formalist reading.308

305

Eörsi, op.cit. note 295, 481, 548ff.

306

Ibid., 481.

307

Quoted in: R. David and J.E.C. Brierley, Major Legal Systems in the World Today. An Introduction to the Comparative Study of Law (Stevens & Son, London, 3rd ed. 1985), 242. For more details on Szabó’s theories of the interpretation of law, see I. Szabó, Die theoretischen Fragen der Auslegung der Rechtsnormen (Akademie-Verlag, Berlin, 1963).

308

For an interesting explanation by a non-lawyer cf. V. Havel, “Kicking the Door”, 26 (4) The New York Review of Books (22 March 1979), reproduced at .

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III.4.5. The Communist Countries Did Not Need Long-Lasting Codes but Ever-Changing Laws What was really going on in the background of Socialist thinking was rather a naïve version of an idea traditional in the Central European region: legislative optimism.309 It was claimed, however, that the legislative optimism of Communist states rested upon a foundation that was radically different from that of the pre-Communist legal culture. “In the Socialist countries”, explained the Soviet theoretician, Vladimir Tumanov (later, in the 1990s, appointed Chief Justice of the Russian Constitutional Court [1995-1997] and, thereafter, Judge of the European Court of Human Rights [1997-1998]), “codification is currently experiencing a new development, acting as valuable means of improving Socialist legislation.”310 The most important reason for this claim was the alleged rapidity of societal development and the Party’s ability to predict the future and to implement appropriate legislation dealing with societal problems. The Soviet Union, the model for Central Europe, was proclaimed to be ‘a country where tomorrow meant already yesterday’;311 nothing but ever-changing laws were able to keep pace with the rapid and progressive development of Socialism. While the capitalist type of law adhered to long-enduring codes, “[n]othing is farther from the [Socialist] States than to base the authority of the law on its long standing”. Quite the opposite: “in a society running a comprehensive planned economy, the conscious and desirable overstepping of the present is an everyday phenomenon which requires legal development through legislation”.312 Therefore, Socialist codes were drafted not on the presumption of their eternal persistence; rather, the very existence and application of the Socialist codifications were conditioned upon the fact that they could (and would) be revised as soon as it was considered necessary.313 This was also 309

Cf. G. Ajani, “By Chance and Prestige: Legal Transplants in Russia and Eastern Europe”, 43 Am. J. Comp. L. (1995) 93, 103, explaining that the consequence of legislative optimism during the Communist and post-Communist era has been the retention of the notion of law as a mechanism for social engineering. A typical Soviet example is Tumanov, op.cit. note 108, 90, arguing that legislation is “a most effective way of effecting consistent social change required in the transition from capitalism to the new Socialist forms of social life”.

310

Tumanov, op.cit. note 108, 94-95.

311

A phrase coined before World War II by the Czech Communist writer, Julius Fučík.

312

Eörsi, op.cit. note 295, 547 (my emphasis).

313

Ibid., 547, 549-550 passim. Similarly, vis-à-vis the Socialist codes and their limited temporal validity, see Varga, op.cit. note 81.

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the reason why the very conception of Socialist interpretation was static and why the Socialist judiciary could be given only a very limited role in lawmaking. Observing the rapid development of the Socialist society in the 1950s, the most renowned Czechoslovak lawyer of the Socialist era, Viktor Knapp (whom I have introduced to the reader above), claimed that the 1950 Civil Code was destined to last for a relatively short time (to be repealed) and that it would be replaced by a newly-enacted code as soon as the necessities of society so required.314 Therefore, the first Socialist Czechoslovak Civil Code of 1950 lasted for less than fourteen years before it was replaced by a new Civil Code in 1964. III.4.6. Socialist Judicial Practice in Socialist Jurisprudence and Socialist Jurisprudence in Socialist Judicial Opinions While the Polish post-Communist judges of the first post-Communist decade often found their inspiration in the older articles written during the Communist era,315 such was not the case in Czechoslovakia, where the substantial part of its legal scholarship ceased to be either legal or scientific (in the Continental sense of this term). In fact, during the 1970s and 1980s, Czechoslovak legal scholarship contrasted with Polish and Hungarian scholarship. While a typical Czechoslovak or East German law article of the 1980s consisted of quotations to Communist classics (since the late 1950s, excluding Stalin), contemporary Party leaders and the resolutions of the Party conferences,316 a typical Hungarian or especially Polish law article contained mostly quotations to both domestic, Western and, by necessity, also to Soviet sources. Unlike the earlier periods, however, the rhetorical Marxist exercises and repetitions of the most recent political slogans (taken from the Party’s latest congress or drawn from a recent speech of a domestic or Soviet Socialist statesmen) were not taken seriously either by their authors or by their audience in Czechoslovakia. After 1968, the Communist ideology died in the souls of everyone although it was still exhibited as the rigid doctrine of the ‘normalized’ country. Two Polish scholars have compared the Polish and East German legal scholarship in the following way (and, from the context of this article, it is clear that this East German example also stands for Czechoslovakia): 314

Cf. Knapp, op.cit. note 215, 291.

315

See, for instance, the decisions of the Polish Constitutional Tribunal translated in: Constitutional Tribunal: A Selection of the Polish Constitutional Tribunal’s Jurisprudence from 1986 to 1999 (Trybunał Konstytucyjy, Warszawa, J. Oniszczuk compl. 1999).

316

I do not claim that ‘typical’ means ‘every’. There were some authors who were allowed to publish, while their horizon was much broader.

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The Judiciary in Central and Eastern Europe “Polish legal scholarship was much less ideological than that produced in more repressive Socialist countries. […] Law review articles from East Germany almost always began with a deferential quote from Honecker, Marx, Lenin, or from a meeting of the Central Committee of the East German Communist Party. By contrast, Polish law review articles almost never openly pandered to the authorities. If anything, most Polish scholars tried to write around the authorities rather than to act as their mouthpiece.”317

Czechoslovak and East German318 law review articles also seemed to be exceedingly sterile in another respect: they almost never cited domestic case law. Similarly, case notes, short comments and critique of decisions,319 typical for the region, disappeared in Czechoslovakia soon after the new Socialist law had begun to be developed. The oldest Czech legal journal, Právník [Lawyer]—which since its establishment in 1861 had published cases and commented upon them—discontinued this practice in the late 1940s and never resumed it, not even in the post-Communist period after 1989. Discussion of the country’s case law was replaced by the adoration of Stalin’s ideas; when the chief commander’s name itself became unwanted, law reviews were filled with more or less abstract and ideological articles without any empirical data, without knowledge of case law, etc. In contrast, such degeneration has never taken place in Poland. Its leading theoretical legal journal, Państwo i Prawo [State and Law], has consistently published important cases as well as case notes by legal scholars. Czechoslovak, Hungarian, and East German judges320 also failed to cite their domestic jurisprudence. In contrast, before 1948, Czechoslovak courts cited both the cases of the former Austrian Supreme Courts and the literature of the vanished monarchy as well as contemporary Czechoslovak doctrine and case law. Socialist legal interpretation—even in clearly hard cases, such as the resolutions of conflicts between the Czech and Slovak supreme courts by the Supreme Court of Czechoslovakia—consisted only in the quotation of binding sources of law; reference was almost never 317

Gostynski and Garfield, op.cit. note 255, at 271. Cf. a personal recollection of the late Olimpiad Ioffe, a noted Soviet civilist who emigrated to the West in the 1980s: “The editorial office of the journal Sovetskoe gosudarstvo i pravo literally compelled me to insert a reference to Brezhnev in a brief article in 1973 which was completely unconnected with Brezhnev’s speeches.” O.S. Ioffe, Development of Civil Law Thinking in the USSR. Studies in Comparative Law (Giuffre, Milano, 1989), 21.

318

Markovits, op.cit. note 256, 43.

319

Hesselink, op.cit. note 74, 15.

320

M. Foster, “Bedeutung und Funktion des juristischen Zitats: Rechtsvergleichende Bestrebungen zur Vereinheitlichung der Zitierpraxis”, Rapports suisses présentés au XIV Congrès international de droit comparé (Schulthess Polygraphischer Verlag, Zürich, 1994), 35-55 (noting that East German judges, unlike their capitalist Western counterparts, did not cite doctrine).

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made to law review articles.321 This is a further indication of the Socialist culture of limited law and textual positivism, in which nothing but the text of the law matters.

IV. Socialist Legal Injustice: Formalism versus Anti-Formalism Revisited After the end of a totalitarian regime, it has become customary to blame legal positivism and an uncritical adherence to positive law for the failures of democracy, law and its actors. The most famous example is the critique made by Gustav Radbruch after 1945. Radbruch argued that positivism made judges defenseless and unable to refuse extremely unjust law.322 His ‘Radbruchian’ formula proclaims that a law which is extremely unjust loses the very character of law.323 In the post-Communist world, this thesis about the failure of legal positivism has gained widespread acceptance and has influenced the Czech Constitutional Court as well as some important Central European legal scholars.324 The Czech Constitutional Court has made explicit reference to it in a holding of the late 1990s: “The history of the twentieth century relating to the existence of totalitarian states proved that mechanical identification of the law with legal texts had become a welcome tool of the totalitarian manipulation. It made the judiciary a submissive and unthinking instrument in the enforcement of totalitarian power.”325 321

For instance, decision of the Czechoslovak Supreme Court of 9 February 1982, Sbírka rozhodnutí (1982) No.3 (civil section).

322

For a classic Radbruch critique see G. Radbruch, “Five Minutes of Legal Philosophy” (S. Paulson transl.), in: J. Feinberg and H. Gross (eds.), Philosophy of Law (Wadsworth Publishing, Belmont, CA, 1986), 109-110. See, also, Alexy, op.cit. note 70, 40ff.; and Müller, op.cit. note 35, 220ff., claiming that references to positivism served as an excuse for the entire German legal profession: “These falsehoods and distortions of history were intended to exculpate an entire profession and to discredit the reputation of the democrats on law school faculties […].” (222-223).

323

Originally published as: “Gesetzliches Unrecht und übergesetzliches Recht”, Süddeutsche Zeitung (1946), 105-108. See an English translation of the Radbruchian formula in: Grosswald Curran, op.cit. note 51, 134.

324

Cf. the work of the Czech Constitutional Court Justice Pavel Holländer, Abriss einer Rechtsphilosophie: strukturelle Überlegungen (Duncker & Humblot, Berlin, 2003). In Poland, see especially: L. Morawski, “Spór o pojecie państwa prawnego” [The Dispute over the Concept of the Rule of Law], 49 (3) Państwo i Prawo (1994), 3-12; and id., “Positivist or Non-Positivist Rule of Law: Polish Experience of a General Dilemma”, in: M. Krygier and A. Czarnota (eds.), The Rule of Law after Communism: Problems and Prospects in East Central Europe (Ashgate Publishing, Dartmouth, UK, 1999), 39ff.

325

Cf. decision No.163 of the Czech Constitutional Court, 9 Sbírka nálezů a usnesení Ústavního soudu [Collection of Judgments and Rulings of the Czech Constitutional Court, hereinafter “ÚS”] (1999); also published in: Sbírka zákonů [Official Gazette, hereinafter “Sb.”] (1998) No.30.

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The Constitutional Court had already made this clear in its first ruling of 1994 on the Act on the Lawlessness of the Communist Regime: “However, the positivistic tradition carried over into the post-war constitutions (including the Czechoslovak Constitution from 1920) in its later development many times exposed its weakness. [...] In Germany the National Socialist domination was accepted as legal, even though it gnawed out the substance and in the end destroyed the basic foundations of the Weimar democracy. After the war, this legalistic conception of political legitimacy made it possible for Klement Gottwald to ‘fill up old casks with new wine’. Then in 1948 he was able, by the formal observance of constitutional procedures, to ‘legitimate’ the February Putsch. In the face of injustice, the principle that ‘law is law’ revealed itself to be powerless.”326

Yet the experience of different totalitarian regimes shows that both positivism and anti-formalism might contribute to unjust results. In her recent work dealing with the judicial injustices of the Nazi Germany and fascist Vichy system of France in the years 1940-1944, Vivian Grosswald Curran persuasively demonstrates that “the post-fascist tendency to attribute responsibility for judicial injustice to positivism was erroneous”.327 On the one hand, the German Nazi anti-formalist judiciary made use of general abstract clauses of civil codes328 or even various unwritten concepts;329 on the other hand, the Vichy ultra-formalist judiciary used a cryptic sort of reasoning. In spite of their use of contrasting judicial methodologies, the substantive outcome was fairly similar. Even without general clauses, the German courts “would have reached the substantive result of stripping Jews of virtually all legal capacity, as the French courts were able to do without using such mechanism”.330 “We have seen that the driving force 326

1 ÚS (1994), 1 (quoted according to the English translation available at ).

327

Grosswald Curran, op.cit. note 51, 104. Cf. a case study on Latin America, Osiel, op.cit. note 3, 488, emphasizing that both methodologies can serve to resist authoritarian regimes, and that positivism might work very well because of “professional conventions about persuasive legal argument”.

328

Ibid. Before the beginning of Nazi rule, “[a]part from a small minority of supporters of the republic, no one in the German legal profession endorsed positivism any longer”. Müller, op.cit. note 35, 219.

329

Through “the German understanding of what is right”, the German courts prohibited marriages between Germans and Jews even before the Nuremberg laws were passed. Ibid., 92-93.

330

Grosswald Curran, op.cit. note 327, 173. Cf. Ott and Buob, op.cit. note 62, 101: “Gesetzespositivismus had already lost its leading role during the Weimar Republic, and national Socialist legal thought was diametrically opposed to positivist thinking. The technique favoured by the Nazis of inserting masses of general clauses into their laws (for example ‘healthy popular sentiment’ in §2 of the Penal Code in the version of 28 June 1935), the open abolition of the principle nulla poena sine lege in the same part of the Code, the numerous interventions in penal proceedings against SS and SA

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behind court decisions in both Germany and France was political ideology, and that particulars of judicial methodology were far less important to the outcomes of cases.”331 At the end of the day, as Jerzy Wróblewski has remarked: “The degree of freedom of judicial decision does not determine either the political content or the political functions of the decisions. This depends on the values the court uses, the purposes it has and the functions of decisions in the concrete contexts of their operation.”332

The actual events in Central Europe lead us to similar conclusions. They demonstrate that—especially at the beginning of the totalitarian regime— it was not blind obedience to the law which mattered; rather, it was blind obedience to power and disrespect for law. I have described both phases of Central European Socialist legal development, anti-formalist Stalinist and rigid textual positivism of post-Stalinist Socialism. We have seen that Communist legal injustice occurred on the basis of two different grounds. The first wave of injustice was based on basically anti-formalist and antipositivist grounds, while positivism and formalism gained ascendancy after the end of Stalinism. Both methodologies were suitable for serving the oppressive totalitarian regimes. In fact, in the late 1940s and the early 1950s, the Czechoslovak legal system—as it appeared on paper—was more democratic and liberal than the legal system in the final three decades of the Communist era. In contrast to the 1960 Socialist Constitution, the 1948 Czechoslovak Constitution provided a much more reliable catalog of human rights; the clause on the leading role of the Communist Party did not appear until 1960. Despite that, the largest number, and most egregious, of Communist crimes occurred during the Stalinist period. The most infamous example is obviously the series of Stalinist political trials, which were exported from the USSR into the new people’s democracies after World War II. The strategy of Communist judges in political cases in the later era was more diverse. One often can observe the lower courts adjudicating in an exceedingly formalistic and occasionally finds the courts of appeal members […], and the mass killings of patients in clinics as a result of the Führer’s secret euthanasia order […] could all have been resisted in no uncertain terms from the legal positivist viewpoint.” 331

Grosswald Curran, op.cit. note 327, 177.

332

Wróblewski, op.cit. note 2, 300. Similarly F. Schauer, “Constitutional Positivism”, 25 Conn. L. Rev. (1993), 797, at 827: “The alleged evils of formalism, positivism, and host of other widely castigated -isms are evils, if evils they be, not acontextually, but because of relatively time-specific, place-specific, and role-specific patterns of social and political behavior imposed on the moral landscape. As social and political behavior changes, then perhaps so should our view of the theoretical constructs within which we manage it.”

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using an anti-formalist approach—without those different styles having any practical impact on the verdict itself. A good example of this phenomenon is the criminal trial against a group of rock musicians (who called themselves ‘The Plastic People of the Universe’) that took place in Czechoslovakia in the 1970s. The Czechoslovak Communist regime feared the negative influence of rock music on Socialist youth; therefore, it did not tolerate any music of that kind. The Plastic People case was one part of a more general trend to persecute artists who remained independent of the Communist regime. An eleven-page decision of the district court mechanically recited the facts (the description of numerous rock concerts organized by the accused and occasional obscenities which were uttered there), while the subsequent legal analysis occupied less than three pages. The prosecution accused the musicians of using “vulgar expressions” contrary to “public morality and the principles of aesthetics”.333 That was the prosecution’s grounds for charging the musicians with the crime of hooliganism, as defined in Section 202 of the Czechoslovak Criminal Code (as “gross obscenity or public disturbance”). The accused musicians had argued in their defense that the words they occasionally used were common in artistic performance and were, under no circumstances in their case, criminal. The district court in its reasoning fully listed the concerts organized and performed by the accused and concluded that the texts of the songs in the repertoire “lacked artistic value, have anti-societal effect and by their content are mostly vulgar”.334 This conclusion alone sufficed to subsume their activity under Section 202 of the Criminal Code. The court did not specify in what the alleged gross obscenity had consisted and had not attempted to explain how society was put into danger by the accused musicians’ concerts. What the court highlighted were the formalistic aspects of Section 202, which in any case were not in question: the activity was public because more than two persons were present, the location of their concert was publicly accessible, etc.335 The court of first instance, thus, showed that formalistic and mechanical reasoning functions well in conjunction with vague clauses such as “gross obscenity or public disturbance”. It was the court of appeal which brought Socialist rhetoric into the case. That court affirmed the lower court’s formalistic reasoning and then added a bit of Socialist anti333

Decision of the Praha-západ District Court of 23 September 1976, (unpublished), file No.T 379/76 (the case of Ivan Jirous et al., Plastic People of the Universe), page 4 of the decision.

334

Ibid., 8.

335

Ibid., 9.

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formalism. In doing so, it made clear the actual reason behind the criminal prosecution of the musicians: their deviation from the regime’s ideal of Socialist ‘popular music’ built by the Socialist ‘cultural front’: “The court of appeal, in addition to detailed and persuasive arguments made by the court of first instance, points out that our criminal law protects the basic interests of our society in its effort to protect and promote our Socialist achievements and ends. Among these ends is included the attempt to create a Socialist culture which is necessary in forming the new, Socialist profile of a working man, in strengthening of his class consciousness, in his creative participation in the building of a new Socialist societal order. Popular music is an integral part in this progressive and cultural process of our society. The accused persons by their mistaken performance [...] found themselves in deep conflict with these interests of our society. Their activity was extremely and by and large anti-social and put in danger the correct and healthy Socialist education of our young generation, to whom the performance of the accused persons were mostly dedicated. [...] [The activity of the accused persons was] a program which, by its destructive nature, violated the positive effort of our cultural front in the creation of real artistic values which help to realize human and noble ends for the whole of our society.”336

Although the court of the first instance had reasoned in an exceedingly formalist way—while the court of appeal had also used some anti-formalist ways of thinking in its reasoning—it made no difference for the accused musicians. A sentence of several years’ imprisonment was affirmed by the court of appeal. It is true that textual positivism and the bound ideology of judicial application of law can immobilize judges from defending democratic values against authoritarian regimes; it can make it even easier to punish innocent victims of political persecution, as happened in the later decades of the Communist era in Central Europe. It really can turn a supposedly independent judge into a “submissive and unthinking instrument in the enforcement of totalitarian power”.337 On the other hand, formalism and positivism might also function as a bulwark against the unjust consequences of totalitarian law—as proven by the attitude of the Slovak and Hungarian judiciary vis-à-vis repressions against Jews during World War II, who used positivist and textual reasoning to protect the Slovak and Hungarian Jews.338 336

Decision of the Prague Regional Court of 11 November 1976, (unpublished), case file No.5 T 403/76 (the appellate proceedings of Ivan Jirous et al., Plastic People of the Universe), page 5 of the actual decision. Note the all-pervading use of the words ‘our’ society, ‘our’ interests, unusual in the Continental style, which openly attempts to draw a line between ‘us’ (Socialist citizens) and ‘them’ (criminals trying to destroy the building of Socialism).

337

Cf. Decision of the Czech Constitutional Court, op.cit. note 325.

338

See Chapter 1 supra.

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Can we take it for granted that positivism significantly contributed to the injustices of Socialist regimes in their final three decades? I think that such a claim would be naïve. We might expect a positive outcome only from a judiciary which is self-confident, in good shape, and equipped with noble values. In contrast, the judiciary in the early Stalinist era found itself badly damaged by World War II, and its prestige had not been improved in the inter-war Central European era—even in the only genuine democracy in the region, in Czechoslovakia. After the Stalinist era ended in Central Europe, the judiciary was, for obvious reasons, in much worse shape. In fact, as I have shown, if the courts had obeyed the instructions of the Czechoslovak Supreme Court, and if they had really referred to substantive reasoning and rationales, it would have meant much more serious consequences for justice in the states of declining really-existing Socialism. Facing its degenerate totalitarian surroundings, they might have filled empty legal form with the only ‘substance’ available in the totalitarian society,339 i.e., policies of the Communist Party. Socialist positivism contributed to the injustices of the late Socialist society in a considerable way. Yet, if the judges had taken much more seriously the Czechoslovak Supreme Court’s words that “[k]nowledge of the actual politics of the Czechoslovak Communist Party and enforcement of its leading role [were] the main conditions and guarantees of class interpretation and application”,340 this would have led to even greater injustices than those that actually occurred in a limited way in the final two Socialist decades. After all, Václav Havel himself attested to this fact: “I have frequently witnessed policemen, prosecutors or judges—if they were dealing with an experienced Chartist or a courageous lawyer, and if they were exposed to public attention (as individuals with name, no longer protected by the anonymity of the apparatus)—suddenly and anxiously begin to take particular care that no cracks appear in the ritual. This does not alter the fact that a despotic power is hiding behind that ritual, but the very existence of the officials’ anxiety necessarily regulates, limits and slows down the operations of that despotism.”341

The issue where positivism versus anti-positivism really matters is the question of punishment for past crimes committed when applying the past laws of dictatorships. If natural law arguments are taken into consideration, then these ‘laws’ might be deprived of their legal nature so 339

Cf. Osiel, op.cit. note 3, 503, arguing that it is unlikely that “the moral inspection [which a judge in a totalitarian state] conducts will prove as independent of the dominant political forces surrounding him as naturalists theories imply”. It is a problem “that a non-ideal theory of adjudication, addressed to the judges we are likely to have rather than to the ‘Herculean’ sages of ideal theory, cannot ignore”.

340

Quoted op.cit. note 233, 456.

341

V. Havel, The Power of the Powerless. Citizens against the State in Central Europe (M.E. Sharpe, New York, NY, John Keane, ed. 1985), 76-77.

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that the problem of retroactive punishment is avoided. Because the real developments in totalitarian states belie the assumption that positive law is modified in order to fit new rulers and, thereby, openly disclose their oppressive policies, the real problem in dealing with the post-Communist past is often the issue whether or not to preserve and to maintain the interpretation of the laws made by the Communist regimes. If the laws of Communist regimes were open to two interpretations—one humanrights friendly and the other more oppressive—should we reject the previous interpretation of law and, instead, use the human-rights friendly approach, despite the fact that the law was not applied in this way by the Communist regime?342 However, these issues of dealing with the crimes of the past are entirely different from that of blaming the methodology for state-sponsored crimes.343

V. An Attempt to Explain the Rationale of Socialist Ultra-Formalism In reaction to the Socialist judicial and legal culture of the 1970s and 1980s, Socialist judicial opinions and Socialist legal writings became a sort of exercise in simplified legal dogmatism. The Socialist ideal of judicial reasoning became a dogmatic textual exegesis. Socialist legal opinions were written in a clearly cognitive way; through their reasoning, judges came to the one ‘right’ answer. The accepted horizon as to what might serve for the interpretation of the law shifted rapidly, and a new conception of limited law was established. But what was the reason for this shift from anti-formalism to ultra-formalism? In view of Stalinist definitions of law and the emphasis placed therein on norms and state coercion, legal developments after the 1950s seem to be a logical continuation of the Stalinist thesis, rather than a deviation from it. I have already shown that Stalinist legal philosophy and its conception of law, considered fully, was Janus-faced. On the one hand, during the Stalinist era, emphasis was placed on the activism of individuals who were willing to achieve extraordinary work results and fight the foreign enemy. Stalinist judges had to join this trend; they also had to demonstrate 342

Cf. decisions in the case of the shootings at the Berlin Wall rendered by the German Federal Court of Justice, BGHSt 39, 1; and by the Federal Constitutional Court, BVerfGE 95, 96. For a discussion (in English), see R. Alexy, “A Defence of Radbruch’s Formula”, in: D. Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order (Hart Publishing, Oxford, 1999), 15ff.

343

Cf. the classic debate between Herbert Hart and Lon Fuller in the late 1950s on the background of dealing with the German Nazi past, Hart, op.cit. note 171, 593; and L.L. Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart”, 71 Harv. L. Rev. (1958), 630.

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that they were contributing to the rapid building of Socialism. Facing the specific atmosphere of the time, judicial reasoning became surprisingly activist in all cases—not only in political cases involving the suppression of the opposition. On the other hand, however, the basic principles of Stalinist legal philosophy were remarkably formalist and dogmatic. The contrast of formalism of jurisprudence with activist legal reasoning resulted in tension, which was finally resolved only after the end of the Stalinist era—in favor of formalism. In fact, Stalinist dictatorship—as any other sort of dictatorship—by necessity generated authoritarian understanding of law. As explained by Professor Siniša Rodin: “Instead of rational discourse that shaped legal and institutional landscape of Europe’s West, the predominant discourse in Central and Eastern Europe was authoritarian. The main characteristic of such authoritarian discourse is the proclamation and imposition of one truth as universal and final. Such discourse was authoritarian since it purported to have a social monopoly over determining the meaning of legal and political language at the top of political hierarchy and communicating it downward. It was, nevertheless, a discourse, since communication of meaning defined in authoritarian way was indispensable to support the claim of universal acceptance, the maintenance of which is a condition of the system’s integrity.”344

The judicial discourse of any legal system is inherently authoritative which is a result of the fact that: (1) by definition, courts must decide as if there were one correct answer to the questions presented to the court (the judicial ‘one-right-answer’ thesis); and (2) their decisions are final because of their authority within the judicial and legal system.345 Authoritative judicial discourse does not preclude but, on the contrary, presupposes a pluralism of opinions and the participation of all competent persons in the legal decision-making process. Plurality of opinion and the fact that the court takes all opinions seriously give the legitimacy to the decision-maker of last resort to provide the ‘right’ answer, which is a necessary condition of the discourse to remain authoritative. In contrast, authoritarian discourse means something very different. Here, the pluralism of opinion is absent. The ‘right’ answer is achieved through a ‘one-way’ process and is backed entirely by threat and force. Those to whom decisions are addressed cannot participate in finding the ‘right’ answers; instead of being subjects, they are rather objects of authoritarian decision-making. Authoritarian discourse implies that legal 344

S. Rodin, “Discourse and Authority in European and Post-Communist Legal Culture”, 1 Croatian Yearbook of European Law and Policy (2005), 1, 7-8 (footnotes omitted).

345

See chapters in MacCormick and Summers, op.cit. note 89, (although the degree of the discursive nature of judicial decisions differs—at one pole standing the CommonLaw system and, at the other, the French system—all courts work on the assumption that their decisions are ‘right’).

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meanings are produced from above and that the existence of any dispute, questioning, legitimate disagreement or construction of the law from the bottom-up is unthinkable.346 Both Stalinist and post-Stalinist legal and judicial culture were authoritarian—as opposed to authoritative—judicial cultures. In both types of Communist regime, any sort of dispute or legitimate disagreement was impermissible, as everything had to comport with the will of the Party. Thus, it is necessary to explain the fact that the authoritarian Stalinist legal culture—based on an activist judicial discourse and the ideology of free judicial decision-making—enabled judges to make a bottom-up construction of the law, at least in some (non-political) cases. Obviously, I have in mind only non-political cases. Political cases were marked by brutal coercion; that is why it would hardly be possible to speak about the ‘bottom-up construction’ of law in relation to them. In order to understand my argument, we need to follow Mirjan Damaška’s categorization of the two ideals of state authority: hierarchical and coordinate. According to the coordinate ideal, the judiciary should be composed of non-specialized judges, in the purest form of laymen (even without expertise in law), who are to seek individual justice for a given case, taking into account substantive arguments, mutually connected not through a crystal-clear hierarchy but, rather, through the shared ideals and values. In contrast, under the hierarchical ideal, the judicial system is based on the notion of a strong hierarchy, impersonality of the law and logical legalism. Judicial echelons in the latter model resemble a bureaucracy in style, thinking and decision-making.347 It is plausible to argue that the judiciary of the early Communist times was based on the shared ideals of an omniscient Marxism-Leninism, knowledge of which was alone believed to generate the only right answer, superior to the formalistic answers produced by ‘bourgeois’ civil proceedings. Formalism—the inhuman tool of the bourgeois judiciary which was used to disadvantage workers348—became a symbol for something decadent which was consigned to the scrap heap of history. Even the personnel, the selection of which reflected the tendency against specialization,349 resembled more Damaška’s description, as they were selected in a short time from among laymen educated in crash law courses.350 Putting aside 346

I take my inspiration from J. Vining, The Authoritative and the Authoritarian (The University of Chicago Press, Chicago, IL, and London, 1986).

347

Damaška, op.cit. note 226, 197ff.

348

Cf. Vyshinsky, op.cit. note 291, 500.

349

Cf. for a theoretical analysis Campbell, op.cit. note 103, 118ff.

350

See Chapter 2, Part IV.2. supra.

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atrocities committed by the Stalinist judiciary, early Socialist judges often genuinely strived to find the best solution to the case, in accord not only with the law but above all with the values of a society heading towards a paradise on Earth. However, the radical anti-formalism characteristic of the early Communist era was succeeded by a strictly hierarchical and bureaucratic ideal of law similar to that which prevailed in Central Europe before the arrival of Soviet troops in 1944/1945. Although transformed, the previous ideal reemerged in the 1950s on the background of new Socialist institutions. While the entire legal culture had been devastated and almost entirely replaced, the hierarchical ideal itself survived and retained enough vitality not only to be influenced by, but also to serve as the model for, the Socialist ideals of justice and law. It was able to survive because—despite some indications to the contrary during the Stalinist era—the judiciary was in fact based on a professional (career) model, and the Socialist judges apparently justified Damaška’s prediction by embracing the formalist and bureaucratic model of law, including its characteristic style of judicial reasoning. I have already mentioned that the Czechoslovak supreme courts issued proclamations full of Marxist-Leninist content, appeals to contribute to the building of Socialism, and calls for a Socialist substantive justice made by courts (although based on the law, not ‘against the law’). They were nothing but a propaganda exercise, doomed not to be taken seriously. I doubt that judges of the 1970s ever read these proclamations. For a judge-bureaucrat, any appeal to judicial activism, his educational role, his function as a promoter of Marxism-Leninism and a teacher of a new Socialist life, was rather strange. Socialist judges, observed not from the view of Socialist rhetoric, but from the view of their records, were the least likely ‘forerunners of the new society’351 pointing the way to the future Communist paradise. For early Communist judges, the hierarchical ideal was much stronger than the coordinate ideal also because of disenchantment with MarxismLeninism. We must be aware that the specific attitude of Stalinist judges towards their law was caused by the revolutionary spirit of this time. The revolutionary enthusiasm of the Stalinist era, however, was not repeated in the later decades of the Communist era in Central Europe (that is why I have called the last phase of Communism ‘post-revolutionary’).352 Nor 351

These expressions were used in the description of law by Kulcsár, op.cit. note 228, 394.

352

This development has been nicely and briefly explained by Otto Ulč, who had been a judge in Czechoslovakia in the late 1950s and himself had experienced the decline of Stalinist political justice: “It is unrealistic to expect an orgasm to last for twenty years. Determination turns into improvisation, zeal into hypocrisy, and the Marxist Writ becomes as impractical and misplaced a source of inspiration as a Gideon

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has the revolutionary belief of the judiciary’s active role in transforming the society been repeated. The people generally, Socialist judges included, lost their faith in the doubtful attractions of the Communist future. The regime’s leaders were aware of that circumstance, a fact which resulted, in some respects, in new Socialist judges having even less intellectual freedom than their Stalinist predecessors, a point Inga Markovits has observed in her study of an East German trial court: ”[Socialist devotion] provided [the lower-level judges of the Stalinist era] with a stockfund of convictions on which to ground their work and thus gave them a moral honesty and, paradoxically, an occasional independence, which many of the judges coming after them, in times far less obsessed with ideology, were lacking.”353

During Stalinism, judges were not supposed—except in the case of political trials—to operate like mechanical instruments, uncritically implementing directives from on high. The early Socialist regime was self-confident; therefore, within strictly limited bounds, it could permit some critical discussion, naturally as long as such ‘debate’ never called into question the official pillars of the regime and its religion, the undisputable doctrines of Marxism-Leninism, or touched upon political or similarly sensitive issues. In Markovits’ view, there was a direct connection between loss of confidence in the omniscience of Marxism, including its capacity to produce the one right answer in law, and the concern for legal formality: “If you no longer believe that your ideology can provide right answers to important social questions, you need to rely on formal rules to find them: doubt in the knowability of outcomes breeds trust in procedures. This is why capitalist law that, unlike Socialist law, allows for disagreement about desirable outcomes, places so much greater faith in due process than Socialism ever could. It is our political agnosticism that makes us rely so heavily upon fair play. East German ‘people’s judges’ of the 1950s and early 1960s knew the right answers, or believed they did, and therefore had very little patience with procedural precision. It was only when courts no longer knew in advance which outcome to prefer that they had to be particular about the means by which they found their answers.”354

Furthermore, and even more importantly, most legislation had been already enacted by the Socialist state, so that there was no reason for Socialist judges to attempt to rewrite these Socialist laws.355 Therefore, the interest in the instrumental use of law application was much lower. Bible in a brothel.” Ulč, op.cit. note 193, 306. Havel refers to this as ‘life within a lie’ in his masterpiece from the 1980s: The Power of the Powerless. Citizens against the State in Central Europe (Havel, op.cit. note 341, 31). 353

Markovits, op.cit. note 150, 845-846.

354

Id., 867.

355

A more active role by judges, vis-à-vis the statutes enacted in pre-war Poland, was proposed by Wróblewski, op.cit. note 282, 337ff. The same conclusion was advanced retrospectively in Hungary; see Eörsi, op.cit. note 295, 482: while a judge in developed Socialist societies is supposed strictly to follow the law, the period of transition “was clearly one of the doubling of law”.

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The pressing revolutionary need for activist judges disappeared, and the legal policies obviously reflected this fact. Whereas the Stalinist regime needed activist judges in order to accomplish its unlawful aims with at least the façade of legalism, in the aftermath of Stalinism, activist judges might have proved quite troublesome, especially in view of the pressing need for normality and of the fact that—since the all-powerful state had already achieved complete control over central law-making—it had already carefully scrutinized the validity of all pre-Socialist laws. One should not forget that post-Stalinist formalism was also a reaction to the Stalinist misuse of law. The major problem which troubled many lawyers in the post-Stalinist era was the legal uncertainty caused by the radical reinterpretation of the law by the Stalinist state, including the judiciary. Both phenomena, i.e., the open acknowledgment of judicial law-making as well as the misuse of law in many criminal cases, called for a clear proclamation of judicial self-restraint and adherence to the law. After the end of Stalinism, many Socialist studies on the so-called ‘Socialist legality’ emerged, and scholars made an effort to elaborate legal principles which would limit the organs applying the law. Activism of the Stalinist judiciary was generally associated with the Stalinist crimes and, therefore, unacceptable. Discussions in Central Europe on the concept of Socialist legality were marked by clashes between Stalinist hardliners and reformers: the former advocated a much broader approach to the law and even called for the rejection of the principle that Socialist judges are bound by statutes, while the latter strongly adhered to the principles of legalism and formalism.356 In the aftermath of massive Stalinist crimes, their transformation came as no surprise. For instance, in Czechoslovakia one conservative Stalinist scholar argued that Socialist legality “cannot be understood solely as compliance with laws”. In the view of this anti-formalist thinker, a lawyer was not supposed to interpret and apply law merely in a formalist fashion in strict accordance with the letter of the law; rather, he also must have regard to the aims of Socialism and decide consistently with the will of the people.357 In the aftermath of Stalinism, this scholar continued to remain faithful to Stalinist constitutional review of the early 1950s, repeatedly referred to the constitution and invoked it as directly applicable law which must be applied by judges exercising a sort of constitutional review. In his view, the 356

Among Czechoslovak reformists, one might mention J. Boguszak, “Právní záruky socialistické zákonnosti v Československé republice” [Legal Guarantees of Socialist Legality in the Czechoslovak Republic], 98 Právník (1959), 113; and id., op.cit. note 216. Both his works exhibit strong formalist and legalist features.

357

I. Bystřina, “K pojetí socialistické zákonnosti” [On the Concept of Socialist Legality], 98 Právník (1959), 693, at 696-697.

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conception of law articulated by formalists lacked an important “political aspect, political side” because “[b]oth lawmaking and application is a political activity”.358 These quite plausible Stalinist theses were, however, antithetical to the reformers, who were aware of the danger of this political reading of law in a totalitarian state.359 Faced with the recent experience of the massive Stalinist crimes and breaches of positive law, they concluded that the cure lay in a much stronger adherence to the letter of the law. In sharp contrast to the views advanced by the Stalinists, any Socialist constitutional review was absolutely ruled out,360 and they remained unwavering in this rejection throughout the rest of the Socialist era. We must also take into account the attitudes of the addressees of the new anti-formalist adjudication, the general public of the just emerging ‘Socialist’ society. People, who were accustomed to the legalism of the former bourgeois era, were shocked by the extent of anti-formalism exhibited by the Stalinist judiciary. As equality, certainty and predictability in law were deeply entrenched values, the people did not welcome such an anti-formalist attitude: “Stalinism in Czechoslovakia succeeded in stripping the law of its certainty and the courts of their integrity, but it failed to convince the average man that he was the beneficiary of the innovation. All the available propaganda techniques could not entirely hide the fact that merchandise was damaged.”361

The early attempts at decision-making—in which judges openly accepted and applied Marxist principles and policies—were contrary to the deeply rooted positivist and dogmatic perceptions in Central Europe about the law and the role of the judiciary. Before World War II, the Central European conceptions of the judiciary were, in principle, identical to those of their German-speaking neighbors, Weimar Germany and especially (in relation to Czechoslovakia and Hungary) Austria. For this reason, formalism seemed natural to the majority of Central European scholars and judges. In contrast, the anti-formalism of the early Socialist era had eroded the ideals of these groups only to a very limited extent. We must bear in mind that the doors to the West, and its evolving conception of law, were closed. Western literature was not easily accessible and, in any case, scholars did not use it. To some extent, only scholars of international

358

Ibid., 699.

359

R.N. Foustka, “K pojmu socialistické zákonnosti” [On the Concept of Socialist Legality], 98 Právník (1959), 931, at 932, emphasizing openly that the political reading of law might easily lead to harmful effects.

360

Ibid.

361

Ulč, op.cit. note 193, 34.

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law were expected to be familiar with current worldwide trends, as that was a vital state necessity.362 For that matter, the outdated conventional Continental doctrines about judicial activity did not seem to be in disagreement with the dogmatism developed by Socialist legal scholarship. For post-Stalinist theoreticians, it would be simply too much for a judge to articulate Marxist policies in an activist way. The original conception of law—emphasizing the role of norms and largely excluding anything else from the legal spectrum— had been further developed to its logical conclusions. Society in general attached an absolute value to the instrumental character of the statute. However, since in the post-Stalinist era, it was (theoretically) up to the legislature to make the law; any potential of the judiciary whatsoever was openly excluded from this field. Any other solution would clearly be in conflict with Socialist democratic principles. Last but not least, even Stalinist activism in Central Europe always targeted the legislature rather than the judiciary and understood the process of good lawmaking primarily as making good, simple and precise laws. “The better the laws formulated by the lawyers, the better the content of laws corresponds to the aims of Socialist development, the clearer and more popularized their form”, claimed the Czechoslovak Minister of Education in the early 1950s, “the more effect they can bring to remodeling of the foundation and subsequent development.”363 In this, the Stalinist judicial activism was rather a by-product—pressed by necessities of the systemic transformation and overall enthusiasm of that time—than an intentional concept supported by domestic legal theory. In light of Stalinist definitions of law and the emphasis on norms and state coercion, legal development after 1953 seemed to be a logical continuation of this thesis rather than a deviation. There was also a very practical reason for the textual positivism of Socialist legal scholarship and practice. This strictly literal positivist reasoning might, in fact, function as a protective shield against the charge of deviating from the party line.364 In this way, it gave a more or less dependent 362

Similarly in East Germany, Markovits, op.cit. note 256, 96.

363

Z. Fierlinger, “Úloha nadstavby v budování socialistického státu” [The Role of Superstructure in the Building of the Socialist State], 90 Právník (1951), 262, at 269.

364

Inga Markovits also asserts the same about East German judges: “East German judges liked to stick closely to the letter of the law since it could be trusted to reflect authoritative Party positions and, at the same time, provided shelter against interferences from the outside.” Markovits, op.cit. note 169, 2294. Similarly, on the last decades of Communism in Hungary, see Z. Fleck, “Judicial Independence and Its Environment in Hungary”, in: J. Přibáň, P. Roberts and J. Young (eds.), Systems

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judiciary a limited area of autonomy. As I have already indicated above, the problem of judicial independence in post-Stalinist Central Europe is more complex than one might assume. As Inga Markovits learned through her careful research on the dockets of one East German trial court, given the fictitious name of Lüritz, “by the time a case had reached the court, the perfect moment for exerting political pull usually had been missed. […] Lüritz judges saw themselves as professionals and tried to guard the independence that their Constitution had promised them. Unlike their Western colleagues, they interpreted their independence very narrowly, almost in territorial terms: they wanted to keep their courtroom clean. […] Lüritz judges were positivists: they clung, as much as possible, to the written law. If that law clashed with the priorities of local politics, a Lüritz judge, rather than compromise legal rules, would try to transfer the conflict from his or her own jurisdiction onto the domain of other government or Party bodies”.365

Another reason lies in the peculiar nature of Marxism as was practiced in the Soviet type of Communism.366 By the end of the nineteenth century, the accumulated Marxian theory (I am not, of course, referring to Marxism in general but, rather, to the quasi-dogmas as exercised in the Soviet type of Socialist state) had crystallized into a virtually final tenet and had been accepted as orthodoxy. Therefore, some post-Communist scholars argue that Socialist antipathy towards the achievements of the social sciences in the course of the twentieth century was caused by the frozen and conservative nature of Marxian science, including its legal branch.367 As a contemporary American and a Russian scholar now argue: “In essence, many aspects of Soviet legal theory remained stuck in a ‘time warp’. To the extent that it had a kinship with Western European civil law systems, Soviet legal theory reflected 19th century ideas that had long ago been discarded by Western European legal scholars.”368

Some Socialist legal scholars even proudly acknowledged that their theory of legal sources went back to the early nineteenth century. For instance, the Hungarian scholar, Imre Szabó, had responded in 1975 to the allegation that Socialist devotion to statutory law had been inherited from Contiof Justice in Transition. Central European Experiences since 1989 (Ashgate Publishing, Dartmouth, UK, 2003), 133. 365

Markovits, op.cit. note 150, 819, 851, 869.

366

For a very different perspective on the Marxist theory of law, see Collins, op.cit. note 102, 5, emphasizing that Marxist doctrine is not rigid and, unlike the doctrine practiced in the Soviet-modeled dictatorships, is open to criticism.

367

C. Varga, Theory of the Judicial Process. The Establishment of Facts (Akadémiai Kiadó, Budapest, 1995), 1-2.

368

G.M. Danilenko and W. Burnham, Law and Legal System of the Russian Federation (Parker School of Foreign and Comparative Law, Columbia University, Juris Publishing, Huntington, NY, 2nd ed. 2000), 3.

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nental culture and that Socialist methodology was similar to Continental style in the following way: “If we can speak of any similarity in this field, we might say rather that Socialist legal systems have returned—although in different social conditions—to the views on the sources of law professed in Continental states at the outset of Bourgeois legal development.”369

This problem seems to be part of a much deeper challenge post-Communist Europe is experiencing. It appears that Marxism-Leninism generated a significant time lag in the intellectual development of Central and Eastern Europe which could not be overcome within the first post-Communist decade. In the early 1990s: “Western societies had long ago entered what is often referred to as the post-modern era, whereas the tradition of modernism still prevailed in Eastern Europe.”370 In conclusion, the post-Stalinist conception of law condemned the activism of the first Communist years as a deviation from Socialism. However, the radical rejection of the first decade of judicial practice in Central Europe led to a state of affairs which had resulted in the opposite extreme. The ideology developed in the post-Stalinist judicial culture is almost a pure example of the Wróblewski’s thesis of the ideology of bound judicial decision-making. Already two decades before the fall of the Berlin Wall, Inga Markovits had observed: “The combination of a civil law system (with its emphasis on the general rule over the individual case and its formally deductive rather than inductive method) and Marxist ideology (with its belief in one right answer and intolerance for compromises and tentative definitions) occasionally produces a formality and scholasticism in legal thought reminiscent of nineteenth-century Begriffsjurisprudenz.”371

I have shown that type of cases the Socialist judges dealt with were quite simple. Therefore, the formalist and literalist approach towards the law was not an unworkable fallacy; rather it managed to survive and, to some extent, operate effectively under the simplified conditions of Socialism. Socialist easy cases did not require complicated approaches to law. Moreover, the all-pervading danger of the openly activist misuse of law for 369

I. Szabó, “The Socialist Conception of Law”, op.cit. note 123, 73, in addition, emphasizing that “even in appearance there is only outer similarity, because the social reasons for Socialist solutions are not identical with those reasons which once set legislative activity in opposition to the arbitrary practices of feudalism making it not merely the main, but the exclusive source of law”.

370

S. Berglund, F.H. Aarebrot, H. Vogt, and G. Karasimeonov, Challenges to Democracy. Eastern Europe Ten Years after the Collapse of Communism (Edward Elgar Publishing, Cheltenham, UK, Northampton, MA, 2001), 52.

371

I.S. Markovits, “Civil Law in East Germany – Its Development and Relation to Soviet Legal History and Ideology”, 78 Yale L.J. (1968-1969), 1, at 2.

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political purposes justified Socialist textualist positivism. This situation has changed radically since 1989.

Chapter 4 Institutional Changes after the Collapse of Communism The collapse of Communism found socialist legal systems unprepared for the challenge of a new societal system: either completely (Czechoslovakia, East Germany and most other countries of the Eastern bloc) or very poorly prepared after limited reforms (in Hungary or Poland). Although there was initially some discussion about the proper direction after the collapse of Communism, there was no question that legal systems must be radically reformed as soon as possible. In their shape at the late 1980s, they were simply incompatible with the ideals of a democratic state as well as with the needs of a radically changing society heading towards capitalism. The paths of Central and Eastern European systems were diverse and, at the same time, similar. There was only one exception: East Germany. When Germany was unified, the East German legal system was simply absorbed by the West German, entirely replaced by West German rules. Moreover, the judicial and prosecutorial posts were filled by West German personnel.1 In 1994, only 9.2% of the judges who held office in 1989 still remained in their posts, and those who left had been replaced almost exclusively by Westerners.2 Even twenty years after the fall of the Berlin Wall, of the sixteen Justices of the Federal Constitutional Court, none was from the new Eastern Länder.3 Hence, it is evident that the analysis in this and the following chapters is not applicable to East Germany. In contrast to East Germany, there was no West Czechoslovakia, West Poland or West Hungary which might have easily repudiated and replaced the legal ideology and restaffed judicial posts virtually overnight. Unlike East Germany,4 the rule of law is building from within in Central Europe. This process is still underway, not yet completed; post-socialist legislatures 1

On this process generally, cf. I.S. Markovits, Imperfect Justice. An East-West German Diary (Clarendon Press, Oxford, 1995).

2

Id., “Children of a Lesser God: GDR Lawyers in Post-Socialist Germany”, 94 Mich. L. Rev. (1996), 2270, at 2271. “The rule of law in Germany’s Eastern half—conceived by Westerners, built by Westerners, staffed with Westerners, and, by all signs, efficiently and smoothly run by Westerners—is likely to remain for some time a largely Western enterprise.” Ibid., 2305.

3

According to the official biographies available at (visited on 21 January 2009). Justice Christine Hohmann-Dennhardt was born in 1950 in Leipzig, then the GDR. But according to her biography on the Internet, she attended Western schools. I assume that her family left what was then the German Democratic Republic in the 1950s and emigrated to West Germany.

4

Cf. Markovits, op.cit. note 2, 2305.

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and lawyers are still looking for a more precise model which they would like to develop and which would best fit their societies. In this chapter, in a rather sketchy way, I will show the trends in new laws on the judiciary in two post-socialist decades and will introduce the post-Communist judges—the main actors of the scenes showed—in the next chapter. It is not the purpose of this chapter to present a thorough description of post-Communist laws on the judiciary and the judicial process (which are, in any case, still in a state of flux); rather, it is intended to serve as a link to the following detailed description of the methodological problems of post-Communist adjudication.

I. The Replacement of Judges While especially in the early Communist system lawyers were pariahs, in post-Communism their role has been enhanced. Building a rule-of-law state also entails—to a certain extent—building a lawyers’ state. Law is now one of the most prestigious fields of study; the legal profession is increasingly honored both financially and in terms of prestige. This, however, did not discourage policies of the early 1990s, when some post-Communist reforms—supported by foreign advisors—de-emphasized the importance of legal reforms. For instance, the Czech government, composed of liberal economists, repeatedly stressed the need to ‘run away from lawyers’ and to develop the liberal economy without corresponding legal regulations.5 Similar criticism has been made with regards the reforms in Poland, Russia and elsewhere.6 The failure of these neo-liberal projects in the mid 1990s was followed by a virtual tidal wave of new legislation—ushered in by governments determined to lead their countries into the European Union. One of the crucial questions of the post-Communist transformation was: what to do with the old judges? Even though I have indicated that only a small number of judges contributed to the injustices of the Communist regime, nevertheless the ability of many socialist judges to serve under the new conditions might plausibly have been questioned. Spontaneous turnover through self-selection began shortly after the fall of Communism. Let us consider the example of the Czech Republic. Out 5

V. Žák, “Economists Economists or Lawyers? Institutional Foundations of Emerging Democracy: The Czechoslovak Example”, in: L.B. Sørensen and L.C. Eliason (eds.), Fascism, Liberalism, and Social Democracy in Central Europe: Past and Present (Aarhus University Press, Aarhus, 2002), 189ff., at 195-7.

6

For a comparison of the situations in Poland (with a key reformer Leszek Balcerowicz), the Czech Republic (Václav Klaus) and Russia (the late Egor Gaidar), see C. Clement and P. Murrell, “Assessing the Value of Law in Transition Economies: An Introduction”, in: P. Murrell (ed.), Assessing the Value of Law in Transition Economies (The University of Michigan Press, Ann Arbor, MI, 2001), 3.

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of 1,460 Czech judges sitting in 1990, more than one-third (484) left the judiciary within three years.7 In Czechoslovakia—as well as in most other post-Communist countries—this development might be explained by the fact that many former Communist judges left their posts for much more lucrative work as private attorneys. While some of them undoubtedly left because they were too compromised by their collaboration with the former regime, many others were the best people the judiciary had in the early 1990s. In 2001, about 60% of Czech judges had spent less than ten years on the bench.8 Similarly, in Hungary ten years after the fall of Communism, 70% of trial court judges have less than ten years experience in their judicial posts.9 That is why it is possible to say that—already in the beginning of the twenty-first century—the number of judges who had served on the bench before 1989 is low. Hence, it would be technically incorrect to characterize Central European judges as former Communist judges; on the contrary, for the most part, they started their judicial career only after the fall of Communism. In 2005, there were only 714 former Communist Party members among 2876 Czech judges, i.e., less than one-quarter (fifteen years previously, Communists had formed almost 60% of the judicial personnel).10 Identification of ex-Communists in the judiciary remains highly controversial, though.11 In 2010, for instance, the Czech courts have ruled that the membership of judges in the former Communist Party of Czechoslovakia is subject to the protection of privacy; the plaintiff was thus prohibited from examining a list of former Communists in Czech courts.12 Elsewhere the issue is much less painful, possibly because of the different nature of Communist regimes (Hungary, for instance) or because 7

See E. Wagnerová, “The Position of Judges in the Czech Republic”, in: J. Přibáň, P. Roberts, and J. Young (eds.), Systems of Justice in Transition. Central European Experiences since 1989 (Ashgate Publishing, Dartmouth, UK, 2003), 163, at 170.

8

Ibid., 170 (1,431 out of 2,465).

9

Z. Fleck, “Judicial Independence and Its Environment in Hungary”, in: Přibáň et al., op.cit. note 7, 121ff., at 127

10

Information provided to the author by the Czech Ministry of Justice, 23 April 2005 (on file with the author).

11

A former senator Martin Mejstřík had tried to obtain the data through questionnaires, although only a minority of judges was willing to disclose their past. Still, his method has shown that a number of former Communist Party members are present at the High Court of Prague. See , press conference (in Czech), 3 October 2008 (visited on 1 May 2009).

12

Decision of the Czech Supreme Administrative Court of 6 January 2010, file No.3 As 10/2009-77.

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of the fact that the Communist past is mostly ignored (most post-Soviet countries). One should not conclude from these data, however, that an analysis of Communist judicial thinking serves no purpose for the next chapter. The type of judicial thinking as analyzed above was a distinctive feature of Communist legal culture, including its law faculties. Therefore, it was inherently connected not only to the judiciary but, also, has had a spillover effect into the rest of the legal profession. Moreover, institutions often have a memory which persists despite personnel changes, as we shall see in the following chapters. The chronic lack of judges after 1989 was not eliminated until judicial salaries—which were very low shortly after the fall of Communism—were substantially raised in the course of the 1990s. EU pressure played a considerable role in this improvement. For instance, the average salary of the Czech district court judge, which in 1990 hovered around the national average, is now approximately double the national average.13 Understandably, by the second half of the 1990s, judicial wages no longer presented a serious problem in the Czech Republic (although the fact that judicial salaries were frozen at the level of 2007 until 2010 caused much controversy and led to several unsuccessful challenges to the law before the Constitutional Court) and judicial vacancies have been filled. The situation in Slovakia is similar.14 In 2009, Hungary the basic income of the first instance judge in 2009 was more than double national average (356,000 Ft as opposed to 160,000 Ft).15 In Poland, the situation was more problematic,16 as the judicial salaries there in the late 1990s were lower than elsewhere in Central Europe.17 However, there have been significant improvements between 2000 and 2002, and the average salary of a district court judge reached the level of about 2.5 times the national average by 2002; regional court judges earned 3.2 times the national average in 2002.18 Although private practice would offer substantially greater financial rewards to Central European lawyers, state employment offers other ad13

See note 10 supra.

14

See CEELI, “Judicial Reform Index for Slovakia” (June 2002), available at , 14.

15

The data provided for the April 2010 Kiev Conference on the Judicial Reforms in post-Communist region by Zoltan Fleck (on file with the author).

16

See PAP [Polish Press Agency] News Wire, 21 January 1997, accessible on Lexis Nexis, “Judges Want Better Funding to Overcome Crisis in Judiciary”.

17

See “Overview of the Polish Judiciary”, with information until 1998, available at (visited on 1 June 2004).

18

Polish statistics for 2003, taken from the Statistical Office, are available at (visited on 1 June 2004).

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vantages, such as job security; thus, it is possible to say that Central Europe has put behind it the chronic shortage of judges of the early 1990s. If we compare data on the number of judges in post-socialist countries of Central Europe (Table I), we see that they roughly correspond to Germany.19 Table I20

Czech Rep. (2001) Czech Rep. (2008) Austria (1995)21 Germany (1995)22 Slovakia (2003)23 Poland (2001)24 Hungary (2002)25 Hungary (2009)26

Population

Judges

10,273,000 10,500,000 7,800,000 82,440,000 5,379,000 38,242,000 10,291,000 10,031,000

2,660 3,063 1,561 22,100 1,302 8,768 2,604 2,818

Judges per 100,000 inhabitants 26 30 20 27 24 23 25 28

Number of employees per judge

3.1 N/A N/A 4.7 3.0 N/A N/A N/A

Another problem is the equipment of the courts. After 1989, it was generally poor. This has changed in the course of the 1990s, in part through the support of the EU PHARE programs, as large numbers of personal computers and other equipment were supplied to court offices.27 However, the salaries of administrative personnel (support staff) are problematic and quite low in comparison with similar professions in both the private 19

Common law countries have a significantly smaller number of judges. Cf. D.S. Clark, “The Relative Importance of Judiciaries in Distinct Legal Traditions”, in: J.A.R. Nafziger and S.C. Symeonides (eds.), Law and Justice in a Multistate World. Essays in Honor of Arthur T. von Mehren (Transnational Publishers, Ardsley, NY, 2002), 609627.

20

Unless otherwise indicated, these data have been drawn from: “Souhrn návrhů pro českou justici v oblasti organizace soudnictví, civilního a trestního řízení” [A Set of Proposals for the Czech Judiciary in the Area of the Organization of the Judiciary and Civil and Criminal Procedure], Twinning Project CZ 01/IB/JH/01 “Judicial Reform and Court Management Czech Republic – Germany – United Kingdom” (unpublished, 2003, on file with the author).

21

Clark, op.cit. note 19, 611-12.

22

Ibid.

23

Figures available at (visited on 1 June 2004), my own calculations.

24

EU Regular Report on Poland’s Progress Towards Accession of 9 November 2002.

25

EU Regular Report on Hungary’s Progress Towards Accession of 9 November 2002.

26

See CEELI, “Judicial Reform Index for Slovakia”, op.cit. note 14.

27

Cf., e.g., for Slovakia ibid., 27-28.

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The Judiciary in Central and Eastern Europe

and public sectors. As a consequence, the support staff assisting judges, on the whole, is under-qualified. This seriously affects the efficiency of judicial work28 and, also, might explain the much higher efficiency of German judges in comparison with their post-Communist counterparts. From the Table II, one can observe that a judge in the German Land of North Rhine Westphalia, aided by competent support personnel, is approximately two to three times more efficient than his Czech counterpart; yet, the German judiciary comprises approximately the same number of judges per capita and only with about 50% more support staff per judge than in most post-Communist countries (see Table I). The division of labor between post-Communist judges and their support staff is very problematic. Most often, adjectives like ‘inefficient’, ‘wasteful’, ‘disorganized’, and ‘chaotic’ are used in relation to managerial work at Central European courts.29 Because of the frequently changing judicial personnel, judges spend much more time than should be the case in performing administrative tasks to the detriment of the quality of their judicial work proper. If many of these complaints sound quite familiar, that is because the reader has encountered them in that part of this work dealing with the post-World War I judiciary.30 Hungarian judges, for instance, spend approximately 27% of their time in court, around 15% of their time writing opinions and the rest on administrative tasks, such as organization of their work, dictation of judicial protocols and statistical issues. Czech judges spend more than one-half of their time on administrative matters which might otherwise be handled by qualified support staff.31 In Poland, therefore, the position of court managers has been established in order to handle more efficiently 28

For a recent work on this issue focusing on the Czech Republic, see J. Dreßel, “The Report of the Findings of an Analysis of Legal Regulations in the Area of the Structure of the Judiciary, the Distribution of Powers within the System, and the Organization of Courts in the Czech Republic”, Twinning Project CZ 01/IB/JH/01 “Judicial Reform and Court Management Czech Republic – Germany – United Kingdom” (unpublished, 2003, on file with the author). For Poland, see “Overview of the Polish Judiciary”, op.cit. note 17.

29

Cf. “Report of an Analysis in the Field of Criminal Law and Criminal Procedural Law (Czech Republic) by Mr. Dr. iur. Frank Schreiber, the Chair of a Criminal Senate at a Regional Court, Chamber for Economic Criminal Law, Federal Republic of Germany (Land Court Hagen)”, Twinning Project CZ 01/IB/JH/01 “Judicial Reform and Court Management Czech Republic – Germany – United Kingdom” (unpublished, 2003, on file with the author), 25; CEELI, “Judicial Reform Index for Slovakia”, op.cit. note 14, 25.

30

See Chapter 1 supra.

31

See Report, op.cit. note 29, 25.

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169

the courts’ work.32 It will be good to keep these data in mind when we analyze, in the next chapter, the deficiencies in post-Communist judicial argumentation. In no sense am I asserting that the methodological influence exerted by the old conception of law entirely explains all the deficiencies of post-Communist judicial reasoning. More practical issues, such as the lack of qualified support staff, might also play a role in the deficiencies which I will discuss in the following chapter. Table II33

Matters

Average length of procedure (in months), 2001

Number of resolved cases per judge, 2001

CIVIL

CIVIL

CRIMINAL

DISTRICT COURTS

CRIMINAL

REGIONAL DISTRICT COURTS COURTS

REGIONAL DISTRICT COURTS COURTS

DISTRICT COURTS

Czech Republic 17.9

9.9

8.7

20.6

362.4

223.2

N.R.Westphalia 4.3 (German Land)

7.2

3.9

5.2

690

600 Including administrative offenses under German law

II. Introducing the Actors In order to understand the inter-judicial discourse between the ordinary judiciary and the Constitutional Court, considered in the next chapter, we must understand the fundamental difference between ordinary court judges and justices of the constitutional judiciary. This difference might explain the dramatically different approaches to the concept of law exhibited by the former and the latter respectively. II.1. Professional Career Judges Born from Infant Judges The judiciary in Central Europe remains a predominantly female profession. In Hungary, for example, 72% of the judges at the district courts 32

“Monitoring the EU Accession Process: Judicial Capacity in Czech Republic”, 40, available at (visited on 4 May 2003).

33

Unless indicated otherwise, these data are drawn from: “A Summary of Proposals for the Czech Judiciary in the Area of the Organization of Judiciary and of Civil and Criminal Procedure”, Twinning Project CZ 01/IB/JH/01 Judicial Reform and Court Management Czech Republic – Germany – United Kingdom (unpublished, 2003, on file with the author).

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The Judiciary in Central and Eastern Europe

in 2000 were women.34 In 1990, when the Polish Communist regime fell, 61.6% of Polish judges were women; by 2000, this percentage had increased to 63.6% (66.2% in first-instance courts). One finds almost identical numbers in the Czech judiciary (63% in 2001).35 In Slovakia, women occupied almost 64% of the posts in district courts.36 In contrast, there are far fewer women in the higher courts: in Poland only 22% of judges at the Supreme Court were women (1997)37 and only 24% at the Czech Supreme Court (2004).38 These figures indicate that the judicial profession remains rather less prestigious in the post-Communist region. Generally, it might be said that the percentage of women on the bench is in inverse proportion to the general level of prestige enjoyed by the profession. In the countries where the judiciary enjoys high prestige, i.e., Common-Law countries or Germany, the number of female judges is traditionally much lower.39 In contrast, the countries where a judicial career is much less prestigious, typically the countries of Romanist legal circle (e.g., France and Italy) have achieved in general gender balance40 or even gender imbalance in favor of women, such as in the ex-socialist systems. For the following elaboration, a much more crucial fact relates to the professional nature of the Central European judiciaries. Nowadays, Central European judges are formally appointed by their country’s president; but the overall process is openly based on the professional career model of the judiciary, where younger candidates are favored and older candidates with professional experience outside of the judicial branch 34

Offi Office ce of the National Council of Justice (Budapest),, “The Functioning of the Hungarian Judicial System”, 8 February 2000 (on file with the author).

35

Wagnerová, op.cit. note 7, 170.

36

My own calculation based on figures contained in CEELI, “Judicial Reform Index for Slovakia”, op.cit. note 14, 9.

37

M. Fuszara, “Women Lawyers in Poland under the Impact of Post-1989 Transformation”, in: U. Schultz and G. Shaw (eds.), Women in the World’s Legal Professions (Hart Publishing, Oxford, 2003), 375.

38

My own calculation based on figures available at the Czech Supreme Court’s website (visited on 1 June 2004). In Slovakia, nearly 40% of the Supreme Court posts are held by women (author’s own estimate based on figures contained in CEELI, “Judicial Reform Index for Slovakia”, op.cit. note 14, 9).

39

U. Schultz, “Introduction: Women in the World’s Legal Professions: Overview and Synthesis”, Schultz and Shaw, op.cit. note 37, xxv, xxxvii. (the respective numbers in 2000 were around 10%, e.g., in the US women made up between 10% and 12% of the judiciary; in Australia, approximately 10%, (but 22.6% in family courts); in the UK, 11.8%).

40

In Germany 26.31% in 1999. Ibid.

Chapter 4: Institutional Changes after the Collapse of Communism

171

are disadvantaged (or at least discouraged).41 This effectively means that cases, at the level of trial courts, are adjudicated by the least experienced lawyers, recent graduates after a short period of preparation. Although it is an old Continental tradition, even before Communist rule ended, the Hungarians had begun to question the extent to which the system might continue to work in this way.42 In the view pronounced in Hungary three years before the fall of the Communist system, a truly independent and reliable judiciary could be created only if the judiciary itself would be composed of experienced lawyers who have had substantial life and legal experience off the bench.43 The judicial autonomy which increasingly pervades the post-Communist systems seems to support the inclination towards a professional career judiciary. For instance, the judges who exercise decisive functions within the Hungarian judicial system—the most autonomous judicial system in the region and one of the most autonomous in Europe—openly prefer young candidates without experience in other legal fields over candidates with practice off the bench.44 Although open politicization of the professional career model combined with extensive judicial autonomy is unlikely, the negative side of this model is seen in the increasing insulation of the judiciary, which is generally considered unaccountable and unresponsive to the needs of practical life.45 The classical Continental paradigm drawing judges from among recent graduates of law faculties is now increasingly being questioned 41

I can recollect from my personal experience, drawn from an interview conducted in 1997 at the Prague Municipal Court where the interviewer, a judge of the court, quite openly told us—all recent graduates—that he personally did not like experienced candidates, as they would be inclined to bring strange things into the judiciary.

42

Cf. critically C. Kabódi, “La juridiction est-elle une prestation?”, 28 (1-2) Acta Juridica Academiae Scientiarum Hungaricae (1986), 149-162.

43

Ibid. In Kabódi’s opinion, a judge dealing with the issues of fact—that is, a judge at the lowest (trial) level— should be an experienced person, not a recent graduate.

44

“Judicial Capacity in Hungary”, Open Society Institute (2002), 112 (visited on 4 May 2003). Similarly Fleck, op.cit. note 9, 129 (discussing the “uncontrolled system tending towards oligarchization”).

45

The Hungarian National Judicial Council consists of fifteen members: nine judges elected by secret ballot of the Judges’ Conference, the President of the Supreme Court (who is also the president of the National Judicial Council), the Minister of Justice, the Attorney General, the President of the Hungarian Chamber of Attorneys, and representatives of Parliament’s Constitutional and Judiciary Committee and Budgetary and Financial Committee. Act on the Organization and Administration of Courts, LXVI/1997, Art.35. See “Judicial Capacity in Hungary”, op.cit. note 44, 116.

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The Judiciary in Central and Eastern Europe

throughout the region.46 The situation is slowly changing, mostly by statutory enactments. The minimum age at which a person is qualified to become a judge in Poland is now 26;47 in the Czech Republic, it is 30 (but until 2003, it was 25 years). In Slovakia, since 2000, the minimum age to become a judge has been 30.48 Many judges appointed in the Czech Republic (until 2003) were not much older than 25. In 2003, the Czech Minister of Justice (soon to be appointed a Chief Justice of the Constitutional Court) wrote that when he saw “the kids at the Prague Castle who were taking the judicial oath”, he became even more persuaded that the Czech legal order must abandon this harmful practice and, instead, opt for judges with sufficient life experience and at least ten or twenty years of previous legal experience.49 In the Czech Republic, a minimum age of 40 is being considered for the future.50 The most severe critique of the present situation has been written by Deputy Chief Justice of the Czech Constitutional Court, Eliška Wagnerová. In her view, “Continental Europe has been abandoning exaggerated legal positivism in favour of sociologising lines of thought which necessarily change the institutional framework. A judge untouched by life is no longer sought after. As the law ceased to be a science about itself but is about life then an exponent of the law must know life.”51

This view ties in closely with the following text. In my opinion, a judge educated in the Continental professional career model is the least suitable person to overcome the dogmatism and formalism typical of the Central European judicial profession. A young lawyer is, from the very beginning of her professional career, molded by this outmoded system which understands itself as a bureaucratic machine and emphasizes formalism over substantive values, simplified solutions over more complex ones. During the few years of their judicial candidacy, young Central European 46

See ibid., 112.

47

Law on the Organization of Ordinary Courts, Art.51 (quoted according to: Roger Blanpain (ed.), International Encyclopedia of Laws, Vol.4, André Alen (ed.), Constitutional Law, Poland – Suppl.48 (Wolters Kluwer Law & Business, Alphen aan den Rijn, The Netherlands, October 2002), 158-159 (at note 193)).

48

Law No.385/2000 Z.z., § 5 (1.a). Cf. CEELI, “Judicial Reform Index for Slovakia”, op.cit. note 14, 7.

49

P. Rychetský, “Reformu justice pro občany, ne pro soudce!” [The Reform of the Judiciary for Citizens, not for Judges!], Právo (12 April 2003), 6.

50

“Koncepce stabilizace justice” [The Conception of the Stabilization of the Judiciary], Czech Ministry of Justice (2004), 10, available (in Czech) at (visited on 1 May 2005).

51

Wagnerová, op.cit. note 7, 178.

Chapter 4: Institutional Changes after the Collapse of Communism

173

judges—immediately following what usually has has been dogmatic legal education at university—encounter nothing other than the mores of their older colleagues. The values of dogmatism and formalism—omnipresent throughout their first professional years—become firmly internalized because the young judges have never been exposed to anything but formalist and textual law application.52 Judicial posts at the high courts in Central Europe are usually filled by career judges who have made the journey throughout the judicial ranks, beginning at the lowest judicial level and ending at the supreme court of the ordinary judiciary after twenty or more years on the bench. Most of these people have never had any career experience other than in the judiciary. This is a typical example of both the Czech and Slovak Supreme Courts, composed almost exclusively of professional career judges.53 Although few judges have remained at the Czech Supreme Court since the end of the Communist era,54 the nature of its judges remains more or less the same. Most of them started their judicial careers in the 1970s and 1980s. The Polish high courts, in contrast, have been transformed not only in terms of personnel; they have been changed professionally as well. After the end of Communism, the Polish Supreme Court and Supreme Administrative Court were re-staffed with a considerable number of academics and other ‘outsiders’ to the judicial echelons. Thereby, the post-Communist Polish judicial system made widespread use of the Polish academia—not so compromised by the former Communist regime as was its CzechoSlovak counterpart. In the summer of 2003, out of twenty-nine judges of 52

Cf. this description of the Italian situation: “Law graduates become judges by way of a public examination. Once admitted to the judiciary they enter a bureaucratic culture lacking in a tradition of excellence and hard work. Excessive importance is given to formalities.” A.A.S. Zuckerman, “Justice in Crisis: Comparative Dimensions of Civil Procedure”, in: A.A.S. Zuckerman (ed.), Civil Justice in Crisis. Comparative Perspectives of Civil Procedure (Oxford University Press, Oxford, 1999), 3-52, at 24.

53

The website of the Czech Supreme Court at (visited repeatedly in the course of 2000s; last visited on 21 March 2010) and of the Slovak Supreme Court at (last visited on 21 March 2010). The exception to this rule is the Supreme Administrative Court of the Czech Republic: one-half of its judges have been appointed from other sectors (prosecutors, attorneys, legal academia and other legal professionals).

54

According to the same data of the Czech Supreme Court (see the preceding data), in the summer of 2004, only three out of its 58 judges had been sitting judges at the Supreme Court before 1989. The number remained the same in 2010; the number of all supreme-court judges, however, had increased (data available at the Supreme Court’s website (visited on 21 March 2010)). The same figure cannot be identified at the Slovak Supreme Court’s website where information about its justices is missing.

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The Judiciary in Central and Eastern Europe

the civil section of the Polish Supreme Court, almost one-fourth (seven) hold professorial degrees (unlike the US, professorial titles in a Continental country usually mean an experienced and older academic).55 One professor of the Warsaw University, himself a judge at the Supreme Court, noted that the composition of the court is shaped by academics—most of them lacking previous judicial experience.56 This policy was possible in Poland where legal academia was much more liberal than its dogmatic and old-fashioned counterpart of former Czechoslovakia. One needs to bear these numbers in mind in the next chapter. They might explain why the Polish high courts often provide different results than those courts of other Central European legal systems. It must warn us, however, from presupposing that the Polish high courts behave in the same way as does the rest of the Polish judiciary since the rest of the judiciary is composed of classical-Continental, career judges.57 II.2. Who Are Central European Constitutional Justices? The task of the post-Communist constitutional courts was to annihilate old paradigms. As Ruti Teitel put it: “Law in periods of radical upheaval is commonly conceived as antistructural, as eluding principle and defying paradigm. The period of normative shift is commonly thought to be antiparadigmatic.”58

This ‘antiparadigmatic’ purpose could not be achieved by self-restrained constitutional courts. And activist constitutional courts might develop only if peopled by judges of a very different sort than those sitting in the ordinary judiciary. Who are the constitutional justices in the Central European region? First, unlike ordinary career judges, they are political appointees with a visible professional past behind them. For instance, the American model is followed in Russia, Slovenia or the Czech Republic, where the constitutional justices are appointed by the President with the approval of the Senate. In Slovakia, Parliament nominates two candidates for each vacant post; the President then chooses from among these candidates. In Hungary 55

According to data provided by the Polish Supreme Court available at (visited on 4 June 2004).

56

W. Sanetra, “Sąd Najwyższy w systemie wymiaru sprawiedliwości” [The Supreme Court in the System of the Judiciary], 9 (7-8) Przegląd Sądowy (1999), 3-15, at 15.

57

Cf. for a critique of the Polish legal and judicial culture, see a paper by a Polish law professor and a judge of the Supreme Administrative Court: M. Zirk-Sadowski, “Transformation and Integration of Legal Cultures and Discourses – Poland”, available at (visited on 4 June 2004).

58

R.G. Teitel, Transitional Justice (Oxford University Press, Oxford, 2000), 215.

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and Poland, the Justices are elected by Parliament; in Poland by the lower chamber of the Parliament (the Hungarian Parliament is unicameral).59 The German Federal Constitutional Court, a paradigm for the postCommunist courts, has traditionally been dominated by academics.60 A similar situation exists in the four Central European post-Communist countries. In February 2003, of the fifteen justices at the Polish Constitutional Tribunal, ten were law professors; in Hungary, as many as nine of eleven.61 Between 1985 and 2001, thirty-six Polish justices served at the Tribunal, which number included twenty-four law professors (five of whom were also experienced practitioners), five ordinary judges, three prosecutors, and two practicing attorneys.62 The number of academics is considerably lower in the countries of former Czechoslovakia. Perhaps, this reflects the difficulty in finding academics not compromised by the Czechoslovak Communist regime.63 Since 2000, when the Slovak court was newly composed, it has had five law professors out of thirteen justices; in the Czech Republic in spring 2003, only one-third of the bench was comprised of law professors (five of fifteen) while in 2009 only two law professors remained.64 In all four courts, we can find outstanding figures who are able to give the Court’s reasoning appropriate direction toward sophisticated Western style adjudication. Such exceptional figures have been necessary if we consider the very nature of the activity of the new courts: to introduce new conceptions of constitutionalism in a society governed by 59

Cf. European Commission for Democracy through Law (Venice Commission), The Composition of Constitutional Courts in: Science and Technique of Democracy, No.20 (Council of Europe Publishing, Strasbourg, 1997); reproduced at .

60

Out of sixteen Justices in 2003, nine were law professors and six Justices were formerly judges at one of five German high courts of the ordinary judiciary; see (visited on 21 January 2003).

61

Data available on the websites of the corresponding courts.

62

L.L. Garlicki, “The Experience of the Polish Constitutional Court”, in: W. Sadurski (ed.), Constitutional Justice, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (Kluwer Law International, The Hague, London, New York, 2002), 265-282, at 269 (notes 16 and 17 and the accompanying text).

63

In this sense, a former Slovak Prime Minister, Vladimír Mečiar, remarked that it is impossible to disguise the fact that “there were not even 10 experts on constitutional law in Slovakia”. H. Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (The University of Chicago Press, Chicago, IL, 2000), 201.

64

Data available on the websites of the corresponding courts. The former Czech data relate to the ‘first’ court, appointed by President Havel; the latter to the ‘second’ Court appointed by President Klaus.

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The Judiciary in Central and Eastern Europe

very different ideals. Constitutionalism challenges the space in the legal system which, in Kahn-Freund’s methodology, is more organic,65 and the resistance to change in law would be very high “when law is tightly coupled in binding arrangements to other social processes”.66 The leading figures of the constitutional courts have been scholars with backgrounds in Western doctrine while not being compromised by relations with the former regime.67 An important role also has been played by charismatic lawyers who emigrated during the Communist rule68 or who were persecuted by the Communist regime. The relative lack of such exceptional figures on the Slovak Constitutional Court, throughout the 1990s, very likely constitutes one of the reasons for its rather rigid jurisprudence.69

III. The Rise of Litigation Since 1989, the rise in the rate of litigation—already visible towards the end of the Communist era—has accelerated. The number of cases in Hungarian district courts has increased by almost 50% between 1991 and 1998; those before the regional courts have nearly doubled in the same period.70 The number of new cases in Polish ordinary courts has increased between 1990 and 2001 by 246%.71 Slovak district judges have been faced 65

O. Kahn-Freund, “On Use and Misuse of Comparative Law”, 37 Mod. L. Rev. (1974), 1.

66

G. Teubner, “Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences”, 61 Mod. L. Rev. (1998), 11, at 19.

67

Examples of such figures are: in Hungary, Laszlo Sólyom (the Court’s President between 1990 and 1998 and, thereafter, President of the Republic Hungary from 2005-2010) and Attila Harmathy (the Court’s President between 1998 and 2007); in Poland, Leszek Lech Garlicki, an internationally renowned constitutional comparatist (Justice until 2001); in the Czech Republic, an outstanding ‘Founding Father’ of the Czech Constitutional Court is Pavel Holländer, a legal theoretician and philosopher (who was reappointed for a second term in 2003); and in Slovakia, Alexander Bröstl (between 2000 and 2007).

68

Such as Vladimír Klokočka of the Czech Constitutional Court (1993-2003) or Eliška Wagnerová of the same Court (from 2002).

69

See R. Procházka, Mission Accomplished. On Founding Constitutional Adjudication in Central Europe (CEU Press, Budapest, New York, NY, 2002), 249. Cf. id., 262. observing the presence of the former Communist apparatchiks at the Slovak Constitutional Court in the 1990s, claiming that “one’s ability to appreciate what no legal text can offer is something that will require years of humble learning”.

70

“

71

Polish statistics for the years 2001, 2002 and 2003, provided in English by the Statistical Office, available at (visited on 1 June 2004).

The Functioning of the Hungarian Judicial System”, op.cit. note 34.

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with a doubling in the annual number of new civil actions filed.72 In the Czech Republic, between 1989 and 2000, the number of new civil actions filed in civil district courts has increased by approximately 30%, the total number of civil cases (both original and appellate) dealt with by regional courts has doubled, and the number of civil appeals to the same courts has more than doubled. At the same time, the number of serious crimes adjudicated by the Czech regional courts as courts of first instance has increased fivefold. In contrast, Czech district courts deal with approximately the same amount of criminal prosecutions as they did in the late 1980s.73 This difference might be accounted for by decriminalization of the socialist era’s petty crimes, especially parasitism (which were decided by district courts) and—at the same time—the emergence of complex cases of economic criminality, with which the regional courts must deal as first-instance courts. The increase in litigation has been accompanied by inevitable delays in deciding cases. These delays are now a common problem throughout the post-Communist region.74 However, there is a significant potential for the number of proceedings to rise in the future, if the quality of judges improves. Here, I will argue that the insufficient quality of the post-Communist judiciary has kept this number lower than it would otherwise have been. If developments in the former East Germany (GDR) after 1990 are compared with those in other post-Communist countries of Central Europe, a striking difference is revealed. After the Federal Republic of Germany incorporated five new federal (formerly East German) Laender in 1990, thus making available its efficient judiciary to persons living in the former GDR, they have resorted to the judicial system far more often than have their counterparts in other post-Communist countries. In 1988, a total of 62,210 first-instance civil cases were filed in those Laender.75 That number rose to a total of 76,800 in 1991; but, in 1994, there was a sharp increase to 317,600.76 The civil litigation rates in the former East German Laender have thus increased more than fivefold between late Communism of 1988 and 1994. As I have

72

Slovak statistics for 1999 provided by the Ministry of Justice, available at (visited on 1 June 2004).

73

For further details, see “Judicial statistics” at (visited on 1 June 2004).

74

Cf. on Poland for further references Procházka, op.cit. note 69, 102.

75

See Statistisches Jahrbuch der Deutschen Demokratischen Republik (Staatliche Zentralverwaltung für Statistik, Berlin, 1989), 399, quoted in: Markovits, op.cit. note 2, 2307.

76

See S. Leutheusser-Schnarrenberger, “Wege zur Justizentlastung”, 48 NJW (1995), 2441, quoted in: Markovits, op.cit. note 2, 2307.

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shown above, in other post-Communist Central European countries, the litigation rate increased by only approximately one-half that much.

IV. The Independence of Judges after the Fall of Communism The independence of judges was proclaimed in the constitutions of all post-Communist countries, but its implementation differs. Hungary has developed, in the course of the 1990s, a system which gave judges extensive autonomy. The recruitment of the judiciary is now entirely up to the judges themselves. Consequently, the Hungarian model is one of the most autonomous among European systems in the early twenty-first century.77 Poland and Slovakia78 have implemented a model of shared powers, in which autonomous judicial organs share with the executive authority in the recruitment of the judiciary. In Poland, the National Council of the Judiciary is the constitutional body which represents the judiciary as the third branch of the government. The Council was established already in 1989, and its existence was constitutionally guaranteed in the 1997 Polish Constitution.79 Among one of its main functions is the nomination of judicial candidates to the President based on its cooperation with the court colleges and general assemblies of judges of the relevant courts, which assess candidates’ qualifications and submit opinions to the National Council of the Judiciary through the Minister of Justice.80 In its first decade of existence, this body has generally been judged to be successful.81 In contrast, the Czech Republic (together with Latvia) has maintained the most extreme system of centralized management of the courts, performed by the Ministry of Justice. The Czech political elite rejected the 77

On the creation and establishment of this model see Fleck, op.cit. note 9, 128ff.; and “Judicial Capacity in Hungary”, op.cit. note 44.

78

For a discussion of the Slovak Judicial Council, see A. Bröstl, “At the Crossroads on the Way to an Independent Slovak Judiciary”, in: Přibáň et al., op.cit. note 7, 148ff.

79

Art.186 of the Polish Constitution (proclaiming that the Council shall “safeguard the independence of courts and judges”). For literature (in English), see E. Letowska, “Courts and Tribunals under the Constitution of Poland”, 1 St. Louis-Warsaw Transatlantic Law Journal (1997), 69.

80

Art.179 of the Polish Constitution. The Minister of Justice has the power to submit candidates to the Council directly, but this seldom happens. See, for details, Open Society Institute, “Judicial Capacity in Poland” (2002), 158, available at (visited on 4 May 2003).

81

Letowska, op.cit. note 79. In 2001, Poland passed two new important laws on the judiciary: Law on Ordinary Courts, 27 July 2001, Dziennik Ustaw [Official Journal, hereinafter “Dz.U.”] (2001) No.98 item 1070; and Law on the National Council of the Judiciary, 27 July 2001, Dz.U. (2001) No.100 item 1082.

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very possibility of creation of a national council of the judiciary, as well as any important autonomous elements in the judiciary. The proposals to establish such a judicial self-governing body were rejected, primarily with references to the historical tradition of judicial administration before the Communist era. Ironically, the old-fashioned and problematic system is defended just because of its aged nature. In this view, the system has derived its inherent value because it existed prior to the advent of the Communist regime.82 Although the principle of judicial independence is guaranteed, the administration of the judiciary—including the selection of judicial candidates—is controlled by the Czech Ministry of Justice. The presiding judges of courts (chief judges) exercise their powers more as representatives of the Ministry of Justice than of the independent, third branch of government. This situation has been frequently criticized because of problems with the separation of powers and the facility with which the Ministry of Justice can manipulate the judiciary.83 For instance, in recent series of restitution lawsuits by a Czech aristocrat against the Czech Republic, the Ministry of Justice ordered chief judges to inform the ministry about all lawsuits made by that person in their court including the name of the judge who was supposed to decide the case.84 The Czech Constitutional Court has criticized interferences of the executive power with the judicial branch. In 2006, the Czech President had dismissed the Supreme Court Chief Justice from her post. The Chief Justice challenged the dismissal before the Constitutional Court, claiming the violation of the principle of judicial independence. The Constitutional Court struck down the law which enabled the executive power to dismiss a chief justice from her post and criticized the Czech regulation of the judiciary.85 The Court reasoned, inter alia: “[O]ne of the basic preconditions to the rule of law is a strong and independent judiciary. In a state which should be considered a law-based state, the judiciary must 82

In more detail see M. Bobek, “The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries”, 14 (1) European Public Law (2008), 99-123; also available at .

83

“Rozhovory o pravu” [Discussions on the Law], Soudce (2002), 2 (in this interview, the honorary President of the Czech Judicial Union, Jan Vyklický, criticized the administration of the judiciary, which never functioned properly in the country, and argues that the system is used as a means to deflect blame from the state administration for the frequent delays in the judiciary).

84

Cf. the plaintiff ’s website (in Czech) at including legal opinions for the plaintiff (visited on 5 July 2009).

85

For the best description of the dismissal case and the administration of the Central European judiciaries generally, see Bobek, op.cit. note 82.

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The Judiciary in Central and Eastern Europe be regarded as one of three powers, which has the same weight as the executive and legislative powers, from which the judiciary must be independent to the greatest degree possible, whereas the judiciary is the only one of the three powers for which special emphasis is placed on the constitutional protection of its independence. This principle has been broadly embodied in the majority of the world’s constitutions; sometimes even in those states where the judiciary was (or is) not actually independent. The danger remains that this principle will remain a mere theoretical edifice, unless it is supplemented in special provisions of the Constitution, or at least in the legal enactments governing the judiciary, by further principles which can be deduced from the constitutions of the majority of West European states, just as from the most important international documents relating to the issue of the independence of the judiciary. […] It is an indispensable requirement for safeguarding the independence of the judiciary that the conditions influencing the selection, recruitment, appointment, career advancement or removal from office of judges allow for independence from the executive and legislative powers. […] In spite of the plurality of institutional models for court administration, one can discover common characteristics in [Europe]. [Judicial independence] is guaranteed either by transferring significant powers to the supreme council of the judiciary (Italy, France, Spain), or by distinguishing judicial administration from state administration within the context of the classic model (Germany, Austria).”86

Based on this reasoning, the Court rebuffed the argument of the President (supported by the Czech government) that the power to dismiss a chief judge is vested in the hands of the same body which appoints judges: “If the President of the Republic is entrusted with the power to appoint the Chief Justice of the Supreme Court, without concurrent action by any other state body, an entirely unlimited power to remove the Chief Justice of the Supreme Court cannot be found in the Constitution’s silence. In the situation where the authority to remove the Chief Justice of the Supreme Court is not explicitly mentioned in the Constitution, to adopt an interpretation whereby the President’s authority to appoint implicates also the possibility to remove the Chief Justice from office, was in conflict with the constitutionally protected value of the independence of the judiciary and its separation from the executive power. In this system, where the judiciary is not absolutely separated from the executive, the President of the Republic is thus entrusted solely with the authority to install the Chief Justice of the Supreme Court into office, whereas in terms of influencing his performance in office or the termination of that office, no power of the President is envisaged. A rule which provides that ‘he who appoints, may recall’ is entirely logical in cases where a direct relationship of superiority and subordination is involved. However, no such relationship exists between the President of the Republic and the Chief Justice of the Supreme Court (who, according to Art. 92 of the Constitution, stands at the head of the highest judicial organ).”87

I doubt that this argument would be praised by mainstream Czech legal academia. In fact, the most frequently-argued opinion prior to the Constitutional Court’s judgment was that close to the dissent of Justice Vladimír 86

Decision of the Czech Constitutional Court of 11 July 2006, Pl. US 18/06 (quoted according to the English version available at (visited on 9 July 2009)).

87

Ibid.

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Kůrka.88 He rejected the starting premises of the Court’s majority that direct control of the executive power over courts’ administration is not comparable to standard administrative relations within the executive branch: “Thus, the court administration which (in contrast to state administration of courts) the Constitutional Court has been considering, is not, in content and regime, distinguished from state administration nor from administration as such; thus, it is unjustifiable to assert that the principle of superiority and subordination, which is otherwise characteristic of administration, does not apply within its framework. It is an untenable notion that where the Ministry performs the administration of courts through its chief judge, the court’s chief judge is not in a relation of subordination towards the Ministry […].”89

However, with regard to the selection of judges of ordinary courts, the system with strong judicial councils and that with a strong role for the executive branch do not appear to work much differently. Judicial autonomy, woven into post-Communist systems, leans towards the model of a professional career judiciary (see Chapter II.1. supra). The Hungarian judiciary—as I have already highlighted in this volume, the most autonomous in the region and one of the most autonomous in all of Europe— shows a distinct preference for young candidates lacking experience in other areas of the law.90 The situation in the Czech Republic, a country with a strong influence of the minister of justice and no judicial council whatsoever, surprisingly goes in the same direction, as the real power in selecting judges is exercised by the chief judges of regional courts; the actual role of the ministry is usually purely formal. As we have noted above, the only formal link which Hungarian judges have with the rest of society is to be seen in those members of the Na88

For just one example, cf. the article of Charles University Constitutional Law Professor Václav Pavlíček “Několik předběžných poznámek k jmenovacím a odvolacím pravomocem prezidenta republiky” [Several Preliminary Notes to the President’s Powers to Appoint and Dismiss], Lege artis: odborný časopis pro právníky (2006), 42-45. The article has been reprinted in a brochure published in support of the President’s action: M. Loužek (ed.), Soudcokracie v ČR: fikce nebo realita? [Judgeocracy in the Czech Republic: Fiction or Reality?] (CEP, Praha, 2006), 71-79. This small brochure—including a foreword written by President Klaus—was prepared in order to condemn the Constitutional Court’s judgment. In the view of all of the authors of this brochure, it signals the rise of ‘judgeocracy’ (‘soudcokracie’: the term was ‘invented’ by President Klaus personally, close to the classic ‘government of judges’ problem). Interestingly, some of the authors—lawyers close to the President—have even called for a return to the Communist principle according to which the term of all judges is limited, subject to repeated reappointments after a short period of time.

89

See the dissenting opinion (in English) by Vladimír Kůrka, op.cit. note 87 (emphasis added).

90

“Judicial Capacity in Hungary”, op.cit. note 44.

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tional Judicial Council who are not from the judiciary (less than half of the fifteen-member total).91 Moreover, it seems to support the tendency of law courts “to close ranks and resist substantive change”, as a prominent Hungarian legal scholar has put it.92 Facing a uniform perspective on the proper personality of an ideal judge, judges tend to be very similar in background and ability. Therefore, the judicial system lacks an enriching variety of experiences and insights. The selection of judges is often based on personal networking that tends to cement the existing hierarchies within the judicial system. What is even worse, non-transparent selection procedures often result in the choice of relatives of sitting judges,93 a phenomenon quite well-known in France prior to 1789.

V. Towards More Efficient Procedure The problem with the codes of criminal or civil procedure is not the fact that they have retained some oppressive elements of the former regime—as they were amended or abolished shortly after 1989. The primary problem seems to be that they were intended to reflect either the civil litigation rate or crime rate prevalent during the socialist era: there was a low number of civil suits, the dockets consisting of uncomplicated debt-collection issues and family-law related cases—with most civil disputes being settled extrajudicially—and a low number of crimes, composed primarily of ordinary crimes (homicide, thefts etc.) or crimes peculiar to the socialist system (e.g., parasitism). These laws did not anticipate, among other things, either new forms of complex commercial litigation, economic criminality, or organized crime. In the pre-Communist period, the four Central European countries had well-developed legal traditions. However, the significance of these traditions for reforms of the post-Communist legal order has been questioned. A Hungarian expert on criminal law, Árpád Erdei, remarked that: “Europe has made some progress during the last century, so going back [to 91

See Chapter II.1. supra.

92

See an interview with Zoltan Fleck, “There is a Curious Alliance of Interests”, HVG hetilap (28 June 2006), available at (visited on 1 July 2009). Cf. also id., “Architekti demokracie” [Architects of Democracy], Sociologický časopis (2005), 601-615.

93

Cf. the country report on Hungary from Freedom House, with further references for Hungary, available at . Similarly, Fleck, op.cit. note 9, 129 (discussing the “uncontrolled system tending towards oligarchization”). As far as I know, the situation is quite similar in both the Czech and the Slovak Republics.

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pre-Communist traditions] would be equal to going back to absolutism.” Further, the Hungarian traditions of the early twentieth century “could not be said of long standing, as the end of the last century was precisely the time of breaking with traditions and creating something new especially in the realm of criminal procedural law”.94 New civil procedure institutions, originally German, attempt to expedite litigation. One of the institutions which has been introduced is a court order for payment of debt (gerichtlicher Mahnbescheid); after filing out a form, the order is granted without any review of the claims in the form. Unless the debtor pays or objects within a specific time, the order becomes enforceable.95 Many other simplified procedures have been introduced, including default judgments, which originally existed in Central Europe before Communism. It would have been unthinkable during the socialist era to introduce any such procedures; given the fact they do not involve any attempt to investigate the case, they would have been contrary to the doctrine of material ‘real’ truth adhered to in Communist legal theory. A new model for criminal procedure codes should result in a decrease in the inquisitorial features of criminal proceedings, making them quicker and more efficient. The adversarial principle is to be emphasized; the parties, including prosecutors, are expected to take a more active role in the conduct of trials. Various simplified proceedings are being introduced.96 Without doubt, this trend has been inspired not only by the modern Western European legal systems but, also, by the American model of criminal procedure. After all, many authors of the reforms conducted their research in the United States.97 The primary problem with the old codes was the fact that criminal proceedings were excessively formalized. In every case, however simple, the investigating authorities were expected to produce, in the pre-trial phase, a heavy dossier of witness testimony, protocols etc. In fact, witness testimony and other evidence had to be produced twice: first, in the 94

Á. Erdei, “Law of Criminal Procedure”, in: A. Harmathy (ed.), Introduction to Hungarian Law (Kluwer Law International, The Hague, London, Boston, 1998), 201ff., at 202.

95

For a description in the German system, cf. P. Gottwald, “Civil Justice Reform: Access, Cost and Expedition. The German Perspective”, Zuckerman, op.cit. note 53, 207-208.

96

Erdei, op.cit. note 94, 201ff. at 208ff.; or R.. Végvári, “Towards the Real Cross-Examination Criminal Procedure in Hungary”, 41 Acta Juridica Hungarica (2000) Nos.3-4, 213-223.

97

Cf. Erdei, op.cit. note 94, 209.

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pre-trial phase; then, before the court during trial.98 These procedures are gradually being transformed. One of the most ambitious criminal reforms is that which is being introduced in Hungary.99 The possibility for semi-private accusation has been introduced into the Hungarian code. Under certain conditions, the victim of a crime may act as a sub-private accuser if the state has dropped the charges. The code appears to modify the central role played by the judge in Continental criminal procedure and to place more emphasis on the role of the parties (the accused and the public prosecutor).100 These reforms and their effect cannot, however, be seriously analyzed before the start of the second decade of the twenty-first century. It is not necessary to make a detailed description of the new or (often amended) old procedural codes. They more or less resemble their Western European, especially German, counterparts—although some remnants of Communist doctrines remain scattered throughout the texts of the codes. One example is the provision of the Czech (and also Slovak) Code of Civil Procedure (Art.120(3)) which prescribes that a judge should decide according to “the really existing facts”. This provision—which empowers judges to search for evidence which has not been proposed by either the plaintiff or the defendant—without doubt relates to the Communist idealist principle of decision-making based on ‘material’ truth, which in a liberal society is inapplicable for civil disputes. Though the actual impact of this provision should not be overestimated, one of its effects might be the otherwise very hard-to-understand hesitancy of Czech and Slovak judges to render judgment in a case rather than calling for yet another court session.101 98

Ibid., 208ff.

99

Act of XIX/1998 on Criminal Procedure (the new Criminal Procedure Code), promulgated by the Parliament in March 1998 and in force since 2003. See, also, Végvári, op.cit. note 96.

100

Technically, it used to be as follows: the judge was the first to question the witnesses, experts and the alleged perpetrator, followed by the prosecution and then the defense. The new code has changed this order; since 2003, it is the prosecutor who poses questions first, followed by the defense, and then finally the judge.

101

For a Western judge’s rather harsh reaction to this provision, cf. “Report on Outcomes of the Analysis of Czech Civil Procedure Act by Dr. Lutz Strohn, Chief Judge of the High Land Court Düsseldorf ”, Twinning Project CZ 01/IB/JH/01 Judicial Reform and Court Management Czech Republic – Germany – United Kingdom (unpublished, 2003, on file with the author), 4. Cf. M. Damaska, “The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments”, 45 Am. J. Comp. L. (1997), 839, at 841-842 (explaining a standard Continental model). The phrase “really existing facts” in Czech is: “skutečný stav věci”.

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For the purposes of my analysis, the way in which judges have started to apply the new law after the end of Communism holds more importance than does an analysis of post-Communist codes. As a Hungarian expert reminded us: “[The Code] is applied by the authorities, particularly by the courts. It follows that to have a new code without having courts capable of applying them is useless, just as it is useless to design a court system without knowing what kind of functions it is supposed to perform.”102

102

Erdei, op.cit. note 94, 209.

Chapter 5 Judicial Methodology in a Post-Communist World: Overcoming the Concept of Limited Law? We have seen socialist judges arguing their cases throughout the four decades of the Communist era in Central Europe. We left off our consideration of the socialist judiciary in the late 1980s. It was a judiciary staffed by personnel who had long before lost—if it ever had—any belief in the omni-science of Marxism-Leninism. These individuals might be described as quite decent: with few exceptions, the socialist judiciary did not contribute in any substantial way to the injustices of Central European Communism of the 1970s and 1980s. However, it was impoverished intellectually, lacked prestige, had a flawed and very narrow education, and was ignored by the elites, who generally did not join the judiciary—either before or after the anti-Communist revolution. Furthermore, in the preceding chapter, I have discussed how—after the fall of Communism—some of the most capable judges resigned from the judiciary in order to pursue much more lucrative private practice. The only thing which gave the members of the Communist judiciary any reason to take pride in their work was the modicum of independence from the Communist power which they could maintain by reading the latter’s laws in a textual way and resolving disputes in accordance with the concept of limited law. This approach had also been employed in a similar way by socialist legal academics, many of whom limited themselves to a textual analysis of the law in order to spare their treatises from the need to include Communist rhetoric, omnipresent especially in Czechoslovakia and East Germany. However, it is quite paradoxical that—although the Communists have left power and the ideology they forced upon everyone no longer holds sway—the concept of limited law, deeply embedded within the ideology of bound judicial decision-making, has been retained by judges in the new democratic legal systems, as well as by much of the post-Communist legal academia. After the fall of Communism, Central European judges were confronted with a radical and rapid change in their societies. It was the third time in less than a century that judges had had to cope with an immense societal transformation. The first occurred at the onset of the ‘short twentieth century’ (Hobsbawm)1 as a consequence of the collapse of the old Central European order, molded for centuries by the vanished Habsburg Monarchy. The second took place when the short-lived democratic legal sys1

E.J. Hobsbawm, The Age of Extremes: The Short Twentieth Century, 1914-1991 (Michael Joseph, London, 1994).

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tem was annihilated after World War II. Roberto MacLean, a former head of Judicial Reform at the World Bank and former Justice of the Supreme Court of Peru, has commented that “[t]he ability of the judge to conform the often static law to real and dynamic circumstances is important in every society” but that this capacity is important “especially in societies and economies in transition—either from state-planned economies or from closed-market systems to open societies and economies”.2 These theses are valid also in the opposite direction: in the transition from the open liberal market system into the closed state economy organization. The Communists understood this very well; at the beginning of the 1950s, their courts fulfilled their tasks fabulously, in their own, often inhuman, sometimes progressive way. The transition of the 1990s was the second fundamental transition which had occurred in the region within forty years. There was, however, one fundamental difference between the Communist transition of the 1950s and democratic transition of the 1990s. The former process was connected with the radical and total destruction of the old legal system, involved near total personnel turnover both at the courts and in legal academia, and was accompanied by revolutionary fervor. In contrast, the fundamental rewriting of Communist laws in the 1990s was not accompanied by massive personnel changes in legal institutions— either in law faculties or in the courts. This continuity in personnel was obviously caused by the fact that there was no place from which to draw new people (only East Germany had its Big Western Brother as we have already noted in passing in this work). Re-crafting the legal system has also taken much more time than it took after World War II, when, for instance, most Austrian and Hungarian laws still in effect in Czechoslovakia had been repealed within two years of the Communist takeovers. Although the level of anti-Communism and disappointment with the failure of Socialism was high after the four decades of the Communist rule in the region, mere anti-Communism could not succeed in producing revolutionary fervor on a par with that of the 1950s. Whatever one concludes as to whether the changes in post-1989 Central and Eastern Europe were revolutionary or anti-revolutionary, the process of legal reforms and developments in judicial law-making philosophy indicates that the latter is much closer to the truth. Irena Pelikánová, a leading figure in Czech commercial law and the first Czech judge at the Court of the First Instance of the European Union, reflects these problems when she says: 2

R.G. MacLean, “Judicial Systems: Challenges for the Twenty First Century”, in: V.C. Jackson and M. Tushnet (eds.), Defining the Field of Comparative Constitutional Law (Praeger, Westport, CT, London, 2002), 115, at 132.

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“The depth of the changes [in legal thinking] is far greater than one could judge at first sight. The process of liberation [from the ideas of the past] must cover not only substantive areas of law, but also the areas of spirit and values, ways of thinking, legal culture.”3

The ordinary courts in the Czech and Slovak republics—and in most other post-Communist countries—have never acted as one might expect transitional courts would act. With the exception of the constitutional courts, the majority of post-Communist courts continued in their formalist reading of the law. The legal academia in these countries also attempt to approach the new laws in an utterly textualist way. When it was necessary to solve a more difficult case, the judges, poorly supported by their legal academia, often sought a way out by disposing of the case on purely formalist grounds. In this way, the simplified version of textual positivism and the ideology of bound judicial decision-making were able to survive. To some extent, they might work well in a society with simplified social life, where the judiciary usually must solve only easy cases and complex cases are channeled through mediators other than the courts. In post-Communist countries, such an approach became untenable, however, as literally overnight the level of societal life became much more complex and the courts were faced with the post-Communist transition—in which they had to solve completely new legal issues such as commercial cases, privatization and new types of business practices—and to cope with an increased caseload. Many of the new laws, especially in earlier phases of the transition, were of poor quality; some of them, however—and increasingly as time passed—were laws that in content were fully comparable with their Western counterparts. Yet, even the best laws cannot accomplish (much of) anything unless they are permanently being improved through judicial practice and supported by a strong public demand for that.4 In this chapter, I will demonstrate—by means of numerous examples—that the old philosophies of the bound application of law and textual positivism continue to govern the post-Communist legal and 3

I. Pelikánová, “Konkurenční doložky a český právní řád” [Non-Competition Clauses and the Czech Legal Order], Právní praxe v podnikání (1997) Nos.7-8, 16ff. Similarly, id., “L’influence de l’harmonisation avec le droit européen sur le droit tchèque, notamment sur le droit commercial”, Acta Universitatis Carolinae – Iuridica (2000) Nos.3-4, 29-33 (criticizing the inability to conceive law in a broader scope including general principles of law; critique of the application of law and legal science; critique of the presumption that solely the text of statutes constitutes the law).

4

Cf. D. Berkowitz, K. Pistor, and J.-F. Richard, “The Transplant Effect”, 51 Am. J. Comp. L. (2003), 163, at 167, arguing that “the judges, lawyers, politicians, and other legal intermediaries that are responsible for developing the law must be able to increase the quality of law in a way that is responsive to demand for legality”.

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judicial discourse and that, in some ways, their features have even worsened. They continue to overemphasize the importance that legislative enactments have in the legal process, underestimating the significance of their subsequent application by courts. The deepest layers of the old legal culture—although without a direct connection to the former official political ideology—are often clothed in the new legal vocabulary, thereby influencing legal thought insidiously. However, far from wishing to convey entirely skeptical tones, I will also trace the first signs of a gradual disintegration of the old concepts and ideologies of law application in the first post-Communist decade. My plan in this chapter is as follows. In the following text, I will offer an extensive case study of the problems encountered in the area of judicial argumentation and methodology during the transformation from a Communist to a post-Communist system. I have decided not merely to analyze and theorize about selected case law of ordinary courts. Rather, the approach which I have selected is to show the flawed methodology of Czech ordinary courts adhering to textual positivism and the ideology of bound judicial decision-making in the face of the Czech Constitutional Court’s constitutional objections to this methodology. First, I will explain the institutional settings of the interactions between Central European ordinary judiciaries and their respective constitutional courts. Extensive case analysis of the problems created by outdated ideologies of the judicial application of law follows. Secondly, having illustrated serious problems created by this deficient methodology, I will show the public reaction and the general discourse about these problems in the Czech Republic in the late 1990s and early 2000s. In relation to the constitutional courts as one of the most important elements in the legal paradigm shift in Central Europe, I will explain how the authority of their decisions has been repeatedly weakened or even undermined by ordinary law courts and by legal academia. In addition, I will argue that—although constitutional review in all Central European countries is based on the ‘centralized’ models—in one sense Central European systems seem to be over-centralized. The new perception of law must cease to be centralized within constitutional courts and must be dispersed throughout all courts of law. I will also show that the divergence in the methodology of ordinary courts of law and constitutional courts was caused by the extent to which constitutional courts voluntarily took their expertise from accumulated Western doctrines. The last two sections relate to the application of European Union law in Central European legal systems. I will demonstrate that methodological flaws have handicapped Central European judges in the reliable and rational implementation of the laws created as a result of the harmonization

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of post-Communist legal systems with EU law. Finally, I shall attempt to summarize the defects caused by ideologies of bound judicial decisionmaking and predict to what extent, and how, the application of European Union law might still be hampered.

I. The Judicial Discourse on Formalism. The Institutional Background I.1. Unpublished Case Law When analyzing post-Communist case law, one must bear in mind a crucial fact which marks the level, structure and intensity of legal discourse in most post-Communist countries. The post-Communist conception of judicial decision-making is accompanied by surviving remnants of the Communist ideas of case decisions as something unworthy of, or too secret for, publication. Few decisions were published and usually (if not always) appeared in edited form. Thus, the problem was not publication per se but one of full and complete publication. Even after 1989, the further one goes to the East, the less developed is the culture of publication of judicial precedents. The Czech Republic and Slovakia still maintain the Communist practice of having an official collection of a few selected judicial decisions, considered of sufficient significance by those authorities who decide on the selection of cases for publication. These editing authorities come from a wide range of institutions, starting with the plenary session of the supreme courts and ending with respective law faculty departments of criminal, civil, commercial or other branches of laws. The selections are made behind closed doors which, naturally, mean the absence of any public discourse. The problem with this official publication of judicial decisions is that, as some judges themselves claim, the rigid system of approval excludes from publication those decisions which are novel and which might bring something new into the legal discourse; instead, primarily decisions which are completely uncontroversial are those which are published.5 Moreover, in many other post-Communist countries (e.g., Croatia, Romania6) we find no case-law reporters whatsoever; alternatively, the re5

See Judge Boris Filemon, case note in: Jurisprudence, Vynutitelnost práva a právní praxe (2000) Nos.4-5, 34ff.

6

Based on my interviews with Professor Siniša Rodin (Croatia) and Monica Jozon (Romania) (20 March 2004). See, also, T. Ćapeta, “Courts, Legal Culture and EU Enlargement”, 1 Croatian Yearbook of European Law and Policy (2005), 23, at 37, noting that the non-publication of case law has prevented the development of discourse in post-Communist countries.

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porters contain only decisions so edited and deprived of relevant facts that one cannot easily understand what the case was really about (Hungary7). This situation has slowly been changing with the European Enlargement, and the European Union has funded several projects in support of the launch of new case-law reporters (for instance, in the Baltic countries).8 Official case-law reporters are losing their importance, however. Case law is increasingly published on a commercial basis in private-sector law reporters and law reviews. In addition, and much more importantly, during the 2000s, most high courts have launched the on-line publication of their case law.9 It can be said that by 2010, the Internet has changed the situation entirely with regard to case-law publication—making case law freely available and easily accessible. It is now up to both academics and practitioners who have to learn to use the flood of case law rationally. Still, the problem persists in respect to lower courts’ decisions, which are very rarely published. It should be added that the case law of new constitutional courts constitutes a clear exception in this respect because it has been the practice for all major constitutional decisions to be published. Almost everyone concurs that these courts’ special character has justified a differing practice, and no argument has ever been advanced against the publication of these decisions. I.2. Constitutional and Ordinary Courts After the fall of authoritarian or totalitarian regimes, the deep distrust in many countries of the old conception of state and law led to the creation of a constitutional court, which ensures adherence to the state’s basic law through its counter-majoritarian functions.10 In the 1950s, the German and Italian constitutional courts were established; two decades later, during the second post-totalitarian and post-authoritarian wave, the Spanish and Portuguese constitutional courts began to exercise constitutional review. 7

Based on the information of Renata Uitz of the Central European University (Budapest, 19 June 2004).

8

Cf. information provided by Estonian Law Centre, available at (visited on 1 July 2005).

9

This is the case of the Czech Supreme Court () as well as the Czech Constitutional Court (). The Czech Supreme Administrative Court has joined this trend in the fall of 2005. It has taken even more time in Slovakia, however, where all decisions of the Supreme Court only have become available on-line in the late 2000s.

10

Cf., on the counter-majoritarian function of constitutional review, M. Troper, “The Logic of Justification of Judicial Review”, 1 International Journal of Constitutional Law (2003), 99-121.

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A few years after World War II, an outstanding Italian scholar, Vittorio Emanuele Orlando, noted that the creation of the Italian Constitutional Court shifted the “gravitational center of the political system”, so that the last word on many major questions of the political system had been vested in several justices representing the majority of the constitutional court.11 After the fall of Communism, the ‘third generation’ of the constitutional courts, which was by far the largest, entered the scene.12 In Poland, a Constitutional Tribunal was created in 1985 as the Communist regime there entered into its final crisis. The Tribunal did not become an important legal and political factor until 1989, during the last months of the Polish Communist regime. Its jurisdiction was broadened in the course of the 1990s, then modified with the enactment of the new Polish Constitution of 1997.13 In Hungary, one of the most important outcomes of the round table talks between the Communist government and the opposition was the creation of what turned out to be a very activist constitutional court.14 Finally, the Czechoslovak Republic—which created one of the original constitutional courts in 1920 (later abolished by the Communists)—revived that tradition in 1992 with the establishment of a new constitutional court. Although due to the dissolution of the Czechoslovak Federation that court was to exist for a mere eleven 11

Quoted in: P. Pasquino, “Constitutional Adjudication and Democracy. Comparative Perspectives: USA, France, Italy”, 11 Ratio Juris (1998), 38.

12

L. Sólyom, “To the Tenth Anniversary of Constitutional Review”, in: G. Halmai (ed.), A Megtalált Alkotmány? A Magyar Alapjojagi Bíráskodás Elsö Kilenc Éve / The Constitution Found? The First Nine Years of Hungarian Constitutional Review on Fundamental Rights (INDOK, Budapest, 2000), 21ff. The third wave of the establishment of constitutional courts extends well beyond the Central and Eastern European region. In the early 1990s, the South African Constitutional Court was established, the High Court of Australia embarked upon its constitutional revolution by its famous Mabo decision and the Israeli Supreme Court became more active. Cf. B. de Villiers (ed.), Birth of a Constitution (Kenwyn, Juta, 1994); M.A. Stephenson and Suri Ratnapala (eds.), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (University of Queensland Press, St. Lucia, 1993); and Z. Segal, “A Constitution Without a Constitution: The Israeli Experience and the American Impact”, 21 Cap. U. L. Rev. (1992), 1, respectively.

13

Cf. M. Brzezynski, The Struggle for Constitutionalism in Poland (St. Martin’s Press, New York, NY, 1998).

14

There is a considerable amount of literature about the Hungarian Constitutional Court. See, mainly, L. Sólyom and G. Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (The University of Michigan Press, Ann Arbor, MI, 2000), covering translations of the most important cases of the Court under its President László Sólyom (1990-1998).

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months, both republics which emerged established their own constitutional courts in 1993.15 Following the German model,16 the Czech Constitutional Court exercises judicial review of the constitutionality both of general rules and of individual decisions, including the judgments of ordinary law courts. The Czech Court regularly decides on the constitutionality of ordinary court decisions and, therefore, has substantial potential to influence the post-Communist ideology of judicial decision-making.17 In contrast, in Hungary18 and Poland,19 one can find only very indirect interactions between the constitutional and ordinary judiciaries; a similar situation prevailed in Slovakia until 2001.20 During the first ten years of its existence (1993-2003), the Czech Constitutional Court repeatedly emphasized the anti-formalist nature of the judicial interpretation of law and often criticized the excessive textual positivism deeply embedded in the post-Communist perception of the judicial application of law and judicial self-understanding.21 A case 15

On the Czech Constitutional Court cf. G. Brunner, M. Hofmann, and P. Holländer (eds.), Verfassungsgerichtsbarkeit in der Tschechischen Republik: Analysen und Sammlung ausgewählter Entscheidungen des Tschechischen Verfassungsgerichts (Bände I.-X. der amtlichen Sammlung) (Nomos Verlagsgesellschaft, Baden-Baden, 2001). The best introduction to all four Central European constitutional courts is provided by R. Procházka, Mission Accomplished. On Founding Constitutional Adjudication in Central Europe (CEU Press, Budapest, New York, NY, 2002).

16

See §13 para. 8a of the law on the Federal Constitutional Court, Art.93 para. 1 (4 a) and (4 b) of the Basic Law. The system in Spain is similar (Arts.43ff. of the organic law on the Constitutional Tribunal). In post-Communist Europe, this model is much less popular. Besides the Czech Republic (and since 2002 Slovakia), it seems to exist only in Slovenia (Art.21 para. 1 (6) of the Act on the Constitutional Court of the Republic of Slovenia, Uradni list [Official Gazette] (1994) No.15 (in English) available at (visited on 16 May 2003)); and Croatia (Art.127 para. 1 of the Constitution of Croatia, Arts.62ff. of the Constitutional Act on the Constitutional Court of the Republic of Croatia, Narodne novine [Official Gazette] (3 May 2002) No.49/02 (in English) available at (visited on 16 May 2003)).

17

Procházka noted that the Czech Constitutional Court, because of its procedure on constitutional complaints and the review of judicial decisions, is the most ‘judicial’ constitutional tribunal in Central Europe. Procházka, op.cit. note 15, 166.

18

Cf., e.g., Art.1 of Act No.XXXII of 1989 on the Constitutional Court of Hungary.

19

Art.79 (1) and Art.191 (1)(6) of the 1997 Constitution of Poland.

20

Procházka, op.cit. note 15, 189.

21

Cf. J. Přibáň, “Judicial Power vs. Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System”, in: W. Sadurski (ed.), Constitutional Justice, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (Kluwer Law International, The Hague, London, New York, NY, 2002), 373-394, especially: 380-382.

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analysis of the discourse—reflected in the jurisprudence of the Czech Constitutional Court and the ordinary judiciary—reveals the extent to which formalism and textual positivism permeate the post-Communist ordinary courts, as well as the Constitutional Court’s limited success in making the judicial ideology more substantive. The constitutional case law criticizing the ideology underlying the ordinary judiciary’s decision-making offers a very unflattering image of postCommunist formalism as practiced by the ordinary judges. It has provided a major impetus for a more open public discourse on judicial dogmatism and textual positivism in the Czech Republic. From the perspective of the ordinary judiciary, however, it was a very unpleasant intrusion upon their relatively private and otherwise not publicly discussed activities. Perhaps because of this experience of their Czech counterparts, the Slovak judicial lobby succeeded (at least, until the early 2000s) in insulating the ordinary judiciary from any influence of the Slovak Constitutional Court.22 Slovak judges vigorously challenged proposals for broadening the scope of constitutional review procedures by using, for example, such ridiculous assertions such as: constitutional review of ordinary court decisions exists nowhere but in the Czech Republic.23 When, shortly after its creation, the Slovak Constitutional Court invalidated the decision of an ordinary court (the only instance prior to 2002 in which it did so), the judges of the Slovak Supreme Court “‘summoned’ some of the justices to a meeting during which serious objections were voiced against any interference by the Slovak Constitutional Court with ordinary adjudication. The majority at the Court then held the affected decision unfit for publication in the official collection of decisions and decided to make it as secret as possible.”24

In 1995, the Slovak Constitutional Court issued a new position on the matter, to the effect that both constitutional review and ordinary adjudication are two completely separate procedures; therefore, the latter cannot be subject to review or annulment by the former.25 To a certain extent, this corresponded to complicated constitutional provisions on restricted con22

Procházka, op.cit. note 15, 73.

23

S. Kohut, “Úvaha o právomoci ústavného súdu rušiť rozhodnutie všeobecného súdu” [A Note on the Power of the Constitutional Court to Quash Decisions of Ordinary Courts], 52 (2) Justičná revue (2000), 149-152, arguing that the review of the constitutionality of judicial decisions would bring more problems than benefits and that it exists in the Czech Republic only. When he wrote this article, Sergej Kohut was a judge of the Slovak Supreme Court. Interestingly, in 2007 he was appointed to the Constitutional Court.

24

Procházka, op.cit note 15, 189.

25

Ibid., 190.

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stitutional complaints (where the Slovak Constitution explicitly shielded the ordinary judiciary from review under that procedure) and quasiconstitutional complaints leading to decisions indicating constitutional breach with no power to nullify the reviewed decision.26 Only in recent years has a real constitutional complaint been introduced (e.g., one which may result in the quashing of a judicial decision); the first years with the procedure confirm that most lawyers are inexperienced with this institution and that resort to it remains rather uncommon.27 In contrast with the Czech system, in the Polish and Hungarian systems (and, until 2001, also the Slovak), where a constitutional complaint proper does not exist at all, there has been only very limited cooperation between the ordinary and constitutional judiciaries. The most problematic aspect of this situation is that these courts lack a means of ensuring respect for constitutional doctrines on the part of the ordinary judiciary.28 Before an excursus into the Czech Constitutional Court’s attempts at transformation of the post-Communist judicial culture, one should again recall the difference between the backgrounds of the main protagonists in that inter-judicial discourse: ordinary judges on the one side and, on the other, justices of the post-Communist constitutional courts. I have already sketched the Central European ordinary judges and constitutional justices, their professional history and background. Here, I will briefly introduce constitutional courts and their style of judicial reasoning—one that reflects a different ideology of judicial decision-making from that which the ordinary courts of law had developed during the last decades of the Communist era in Central Europe. The constitutional judiciaries that were established in the new, postCommunist wave are often characterized as further incarnations of the Kelsenian model of constitutional review. However, one should be aware that this formally Kelsenian model of centralized constitutional review is applied in a substantively non-Kelsenian way. Hans Kelsen never anticipated (and would not have been in favor of) an activist constitutional judiciary, such as those which have appeared in Europe after World War II. His model was based on the constitutional court as the guardian of the constitution in cases where a breach of constitutional provisions was clear and evident. Kelsen did not envision a constitutional tribunal which 26

For a brief description (in English) see ibid., 186.

27

On this see J. Štiavnický, “Princíp subsidiarity v českej a slovenskej súdnej moci” [The Principle of Subsidiarity in the Czech and Slovak Judicial Power] in: V. Hloušek and V. Šimíček (eds.), Dělba soudní moci v České republice [The Separation of Judicial Power in the Czech Republic] (Masarykova Univerzita, Brno, 2004), 148-165.

28

For a detailed discussion of these problems in Poland, see Procházka, op.cit. note 15, 103-104.

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would intrude into individual cases decided by ordinary judges; individual cases were within the competence of ordinary judges, and constitutional justices were empowered solely to determine the constitutionality of general norms—not of individual judicial decisions.29 Moreover, Kelsen’s view emphasized a more literal approach to constitutional adjudication and the rather self-restrained nature of that process. In the second edition of his The Pure Theory of Law, published in 1960 when the activist German Federal Constitutional Court had nearly completed the first decade of its existence, Kelsen wrote that—as a general matter—the validity of a legal rule cannot be questioned on account of its content. In Kelsen’s view, a constitution “usually only determines the organs and the procedure of legislation and leaves the determination of the content of the statutes to the legislative organs. The constitution determines only exceptionally (and effectively only in a negative sense) the contents of the statutes to be created, by excluding certain contents”.30

Until recently, Kelsen’s views were more or less followed by the Austrian Constitutional Court.31 Post-World War II Austrian society—claiming its status as the first of Nazi Germany’s victims—was inclined to adhere to basic continuity without the need for a strong extra-political institution. In contrast, other post-World War II constitutional courts, most notably the German Federal Constitutional Court, engaged in highly activist decisionmaking: the German Court, for example, emphasized that constitutional law is “an objective value order”,32 espoused the theory that constitutional law “radiates” throughout the legal order,33 etc. 29

On the description of Kelsen’s model of constitutional judiciary, as implemented in 1920 in Austria and Czechoslovakia, see (in English) H. Kelsen, “Judicial Review of Legislation. A Comparative Study of the Austrian and the American Constitution”, 4 The Journal of Politics (1942), 183-200.

30

H. Kelsen, Reine Rechtslehre (Österreichische Staatsdruckerei, Wien, 2d ed. 1960), quoted according to the English translation from the second German-language edition: Pure Theory of Law (University of California Press, Berkeley, CA, Max Knight transl. 1967), 232 (my emphasis). Cf. also Chapter 1, Part I.3.

31

On the difference between Austrian and German constitutional courts, see D. Merten, “Aktuelle Probleme der Verfassungsgerichtsbarkeit in der Bundesrepublik Deutschland und in Österreich”, in: H. Schaffer (ed.), Im Dienst an Staat und Recht, Festschrift für Erwin Melichar (Manz, Wien, 1983), 107-123; or C. Grewe, “Vergleich zwischen den Interpretationsmethoden europäischer Verfassungsgerichte und des Europäischen Gerichtshofes für Menschenrechte”, 58 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2001), 459-473, at 462. See (in English) H. Hausmaninger, The Austrian Legal System (Kluwer Law International, The Hague, London, New York, NY, 2nd ed. 2000), 147-148.

32

BVerfGE 7, 198 (Lütz).

33

On this point, see R. Alexy, A Theory of Constitutional Rights (Oxford University Press, Oxford, J. Rivers transl. 2002), 350ff.

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Needless to say, not the Austrian Kelsenian but rather the German ‘anti-Kelsenian’ constitutional court has become the archetype of the Central European style of constitutional adjudication. A strict positivist approach to interpretation, as practiced by the Austrian Constitutional Court, was not appropriate for the post-Communist democracies. In postCommunist countries, the activist model of the constitutional judiciary was almost inevitable.34 The post-Communist constitutional courts in Central Europe often based their reasoning on abstract clauses such as the ‘rule-of-law state’ (Poland, Czech Republic, Slovakia) or ‘human dignity’ (Hungary), creating a complex set of dynamic constitutional propositions which extended far beyond the strict reading of the constitutional texts,35 thus establishing the philosophy of the New Constitutionalism. In this respect, the Slovak Constitutional Court represents to a certain extent an exception, as throughout the 1990s it was notorious for its rigid reading of the text.36 The Central European constitutional courts—composed of many justices not bound by the old-fashioned stereotypes of the concept of law—have the ability to start reshaping the outdated legal culture of some Central European countries. Their significance is far reaching, not restricted only to the field of constitutional law but, rather, touching even the long-standing conceptions of law, judicial decision-making, etc.37 A new and, from the perspective of traditional Central European doctrine, revolutionary idea of an activist constitutional judiciary shakes post-Communist lawyers’ ideology. 34

This claim applies at least to the first post-Communist decade, even if the level of judicial activism at Central European constitutional courts differs throughout the region and in particular countries in the course of time. Cf. for instance, the Hungarian Constitutional Court under the leadership of Sólyom (1990-1998) and Nemeth (since 1999); see K.L. Scheppele, “The New Hungarian Constitutional Court”, 8 East European Constitutional Review (1999) No.4, available at .

35

For an excellent analysis of the interpretative technique of the Central European constitutional courts, see Procházka, op.cit. note 15, 203-263.

36

Ibid., 260 (claiming that the Court’s operations resembled ‘mathematical analysis’).

37

M. Taruffo has mentioned that this character of constitutional courts is in fact a worldwide phenomena, fundamentally changing the very core of the Continental culture. M. Taruffo, “Institutional Factors Influencing Precedents”, in: D.N. MacCormick and R.S. Summers (eds.), Interpreting Precedents: A Comparative Study (Dartmouth Publishing, Aldershot, UK, 1997), 450. Cf. also the new last chapter in the second edition of J.H. Merryman, The Civil Law Tradition (Stanford University Press, Stanford, CA, 2nd ed. 1985).

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II. Discourse between the Czech Constitutional Court and Ordinary Courts. The Ideology of the Bound Judicial Decision-Making Challenged II.1. The Concept of ‘Mechanical Jurisprudence’: A Slow Transformation During almost two decades long discourse between the Czech Constitutional Court and the ordinary judiciary, a careful observer will find many problems facing the post-Communist courts in a new democratic society.38 While the Czech Constitutional Court attempts to represent the new constitutional culture, the ordinary courts represent the old legal philosophy of bound judicial decision-making, as is visible in all-pervading textual positivism and formalism. As the German example clearly illustrates, a centralized constitutional court cannot adjudicate an allegation of the incorrect application of law made by the ordinary court; it can deal only with alleged breaches of constitutional law. The question of the circumstances under which a constitutional court may intrude upon the decision-making of the ordinary courts is one of the most problematic issues of the German model of constitutional justice.39 Such a problem does not exist in the American model of decentralized judicial review because the Supreme Court and other courts are not limited only to constitutional questions.40 What does fall within the boundaries of constitutional adjudication is not often evident because there is obviously no clear delineation between constitutional law and ordinary (non-constitutional) law. Contemporary ideologies of constitutionalism take for granted that the impact of constitutions—and, above all, basic rights—can extend to virtually any field of law. After all, it is the constitutional court which is empowered to decide 38

Cf. Procházka, op.cit. note 15, 159-160: “The various doctrinal by-products of the CCC’s rulings in the realm of concrete review, such as the vigorous rejection of excessive formalism or the emphasis on teleological interpretation, proved highly relevant to the emergence of the Czech kind of constitutionalism.”

39

The problem of delineating the competence of the Federal Constitutional Court in relation to the ordinary judiciary and the proliferation of constitutional principles into all spheres of law is becoming an increasingly contentious part of recent German constitutional doctrine. See, for instance, the arguments of a prominent German scholar that the ongoing constitutionalization of private law disrupts legal certainty: J. Isensee, “Bundesverfassungsgericht – quo vadis?”, Juristenzeitung (1996), 1085.

40

Otherwise, a similar problem of resolving the issue of what constitutes a constitutional issue would have arisen in the US as well. Cf. a recent comparison of both tribunals: R. Rogowski and T. Gawron (eds.), Constitutional Courts in Comparison: The US Supreme Court and the German Federal Constitutional Court (Berghahn Books, New York, NY, Oxford, 2002).

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what constitutional law is and to delineate the boundaries between it and the questions of ordinary law, which are excluded from its jurisdiction. The Czech Constitutional Court marked out its jurisdiction vis-à-vis the ordinary judiciary broadly enough to encompass major excesses of textual positivism made by the ordinary court.41 The Court openly declared that it has the jurisdiction to decide cases in which public authorities (including ordinary courts) are alleged to have made arbitrary decisions (for instance, by ignoring the applicable mandatory rule) or to have interpreted the law in a way which is in ‘an extreme conflict with the principles of justice’ (for instance exaggerated formalism). The same applies to major excesses in the determination of questions of fact. In all such cases, an individual fundamental right may have been violated.42 A number of decisions of the Czech Constitutional Court perform the function which should have been, under normal conditions, exercised above all by legal scholars. Let us take as an example the issue of the proper and permissible methods of the interpretation of law. I have shown that the prominent role played by teleological argumentation is one important feature of the development of Western European legal thinking in the course of the twentieth century. In contrast, following the Communist legacy, post-Communist lawyers (including academics) overestimate the possibilities of the literal reading of the law, viewing teleological arguments as a rather unimportant tool to be employed only in very exceptional situations.43 Facing a strong degree of post-Communist methodological formalism—the excessive reliance of the ordinary courts on the rigid Czech legal theory of a literal reading of the law—the Constitutional Court, inspired by foreign case law, has tried to teach the ordinary courts that they are not: “absolutely bound by the literal wording of a legal provision, as they can and must deviate therefrom if such a deviation is demanded by serious reasons of the law’s purpose, the history of its adoption, systematic reasons or any principle deriving from 41

For a description, see (in English) Procházka, op.cit. note 15, 162ff.

42

This doctrine has been repeated in numerous decisions of the Court, cf., e.g., decision III. ÚS 224/98 published in: 15 Sbírka nálezů a usnesení Ústavního soudu [Collection of Judgments and Rulings of the Czech Constitutional Court, hereinafter “ÚS”] (1999), 17.

43

See, e.g., views about interpretation, as made in a prominent Czech textbook on legal theory, according to which the basic methods of interpretation are grammatical, logical and systemic, while historical and teleological are exceptional and rather unimportant. The textbook presents interpretation as a rather mechanical activity, so that it takes up only 5 pages of a 350-page book. See J. Boguszak, J. Čapek, and A. Gerloch, Teorie práva [Legal Theory] (ASPI Publishing, Praha, 2nd ed. 2004), chapter X, 182-187.

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the constitutionally conforming legal order. […] In doing so, it is necessary to avoid arbitrariness; the court decisions must be based on a rational argumentation.”44

Unlike the teachings of socialist jurisprudence, to which part of the postCommunist legal academia still adheres,45 the purpose and meaning of the law is to be found not only in the letter of the law, the Court argued, because “legal enactments do, and must always, include within themselves the principles recognized as part of the democratic states governed by the rule of law”.46 Textual (linguistic) interpretation represents only the first step in understanding the law. It is only “an exposure to understanding the rationale and meaning of the law”.47 The court’s harsh criticism has often been rather undiplomatic. In criticizing the prevailing simplified conception of law, the Court openly remarked that the “[m]echanical application of the law, whether disregarding the rationale and meaning of the legal norm intentionally or by ignorance, makes from the law an instrument of alienation and absurdity”.48 One of the principle authors of these rulings (to whom the reader of this work has already been introduced), constitutional justice and legal philosopher Pavel Holländer, has argued that the move towards purposive (teleological) argumentation is a necessary shift which must be completed in Central European legal doctrine.49 One of the major problems which post-Communist ordinary courts have faced is the inability to grasp the complexity of hard cases. That the principal doctrine of limited law— textual positivism—is a theory of easy cases is verified by the fact that Czech judges implicitly follow the presumption: it is possible to decide any case in a textual fashion. The courts try to follow the letter of the law, however problematic and absurd the results may be which this course produces. A symptomatic example is a case relating to dissolution of the former Czechoslovakia.50 Before 1 January 1993 (the date the Czechoslovak Federation came to an end), a Czechoslovak citizen had submitted her 44

Decision Pl. ÚS 21/96, 7 ÚS (1997), 87.

45

See Boguszak et al., op.cit. note 43.

46

Decision IV. ÚS 275/96, 6 ÚS (1996), 249.

47

Decision Pl. ÚS 33/97, 9 ÚS (1997), 399. Cf. a rather similar German argumentation in: BVerfGE 35, 263 (278ff.).

48

Decision Pl. ÚS 33/97, 9 ÚS (1997), 399, (my emphasis).

49

Cf. generally, P. Holländer, Ústavněprávní argumentace. Ohlédnutí po deseti letech Ústavního soudu [Constitutional Argumentation: A Look Back at the Constitutional Court’s First Ten Years] (Linde, Praha, 2003).

50

Decision IV. ÚS 215/94, 3 ÚS (1995), 227. I am citing the English translation by Mark Gillis which can be found at .

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request for the restitution of property on the basis of Czechoslovak legislation. The claimant had applied properly and timely and had satisfied all the legislative conditions, which at the time of the application included citizenship of Czechoslovakia. Due to a delay in administrative and later judicial proceedings, her claim was not satisfied before 1 January 1993, when the Czechoslovak Federation had ceased to exist and the claimant had become a citizen of Slovakia. Both the administrative authority and the court deciding in the matter relied on Czech legislation, which provided that after 1 January 1993, statutes tying rights and duties to the territory of Czechoslovakia and to Czechoslovak citizenship must, unless otherwise provided by statute, be interpreted so that these terms are understood to mean citizenship of the Czech Republic. Therefore, both the administrative authority and the court reached the conclusion that the applicant did not meet one of the requirements for restitution, namely citizenship of the Czech Republic, regardless of the fact that when she asserted her claim she met all the requirements—above all, citizenship. The ordinary court decided the case in a textual and formalist way. It made its decision irrespective of the fact that its method led it to a rather strange and absurd result. The Czech Constitutional Court approached the case as a hard one, requiring not only textual arguments but, also, the need to highlight constitutional principles and to emphasize values behind the decision. Finally, the Court rejected the ordinary court’s resolution of the matter with reasoning that emphasized constitutional values and principles, namely legal certainty and the protection of citizens’ faith in law: “The legal position adopted by [the administrative authority and the ordinary court] […] thus actually leads to the consequence that conduct which was legally relevant in accordance with the preceding legal rules became, on the basis of the effect of the new legal rules (more precisely said, on the basis of the new legal situation), legally irrelevant, so that an unjustifiable inequality was established between authorized persons. In this way, the constitutional principles of the protection of the citizen’s faith in law, of the law-based state, and of equality, as they are laid down in Article 1 of the Constitution of the Czech Republic and in Article 1 of the Charter, were infringed. […] [T]he purpose of all restitution acts was to alleviate the consequences of certain property injustices which occurred during the decisive period [of Communist rule]. […] [T]hese legal enactments cannot be interpreted so dogmatically and nonconformably to the Constitution as to de facto give rise […] to new injustices.”51

Another striking case of textual positivism relates to the 1994 Czech law which rewarded anti-Nazi fighters and persons persecuted under the Nazi occupation regime in the Czech lands. According to the law, widows (or widowers) of a person who had died or was executed in a concentra51

Ibid.

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tion camp were entitled to financial compensation. State authorities— including ordinary courts—were required to interpret the meaning of the term ‘concentration camp’. They decided the issue by means of a systemic interpretation; in their search for the text and definition, they found another law which was several decades old and which was entirely unrelated to the issue at stake. The old law had defined a Nazi-era political prisoner as a person imprisoned until 5 May 1945 when Czechoslovak law was fully revived in Czechoslovakia. In several instances, prisoners who were still alive on 4 May died shortly thereafter due to torture or similar maltreatment (at stake were deaths occurring on 7 and 8 May 1945, etc.). The textual interpretation meant, however, that relatives of these persons were deprived of their right to payment. Judicial obsession with the text has been proved by the fact that the law in question did not require judges to borrow a definition of ‘concentration camp’ from a different and obsolete law. The Constitutional Court rebuffed these formalist arguments, insisting instead on the purpose of the law and the principle of proportionality: “The High Court interpreted the law in such a way that death in a concentration camp after 5 May 1945 does not establish the right [to payment] […] because the time when somebody was a Czechoslovak political prisoner ended on 5 May 1945. The idea that the injured citizen who continued to be imprisoned after 4 May 1945 ceased to be a political prisoner is absurd and is against the purpose of the law. […] The restrictive interpretation by the High Court in Prague corresponds neither to the sense of the law nor to the intent of the legislature and breaches the principle of proportionality […].”52

I have indicated that formalism can be internalized, i.e., a judge-formalist genuinely believes in formalist values. I have called this type of judge ‘a real and authentic formalist’. This kind of judge presents her own ‘formalist’ justice, based on the single, indisputably correct interpretation, which to her is clearly preferable to uncertain non-formalist outcomes. At the other end of the spectrum of formalism, a judge-formalist does not internalize formalism; rather s/he uses formalism and textual positivism for other reasons, e.g., due to her lack of ability or to fear of deciding the real question in dispute. Formalist reasoning offers her a much easier

52

Decision Pl. ÚS 23/96, 8 ÚS (1997), 23; also published in: Sb. (1997) No.128.

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way of handling hard cases.53 I have called this type of judge ‘a pragmatic formalist’.54 While many examples, including the preceding one, indicate that post-Communist ordinary judges are strong adherents to the values of formalism and textual positivism, many other examples show that formalism and textual positivism might serve a quite different agenda. Too often it seems that post-Communist judges hesitate to go into the merits of a case, preferring to dispose of a case on formal grounds. Formalism is a veil hiding the real reason for the decision—the inability to decide a complex issue of a case or even hostility to the substantive outcome mandated by the law. What is shocking to the common sense might seem normal within the culture of limited law and textual positivism. Boštjan Zupanžič, a former Justice of the Slovenian Constitutional Court, characterized post-Communist formalism in this way: “Formalism can cynically be used as a language game into which extraneous hidden political agendas can readily be translated. The end result of this is the schizophrenic discrepancy between what is being said and what is really meant. In other words, legal formalism then becomes the high art either of intelligent deception in one extreme or self-deception in the other (less intelligent) extreme. In most cases, however, the two cognitive extremes converge and overlap.”55

A typical example of this phenomenon is the clear preference, on the part of appellate courts, to quash a lower-court decision on formalist grounds and—rather than finally deciding the case—to remand it for further proceedings. This approach contributes to substantial delays in deciding cases.56 Another example is a long line of cases in which, because of the ordinary courts’ reluctance to follow the principle adjudicated by the Constitutional Court, the Court repeatedly has been obliged to deal with 53

Cf. “Report on Outcomes of the Analysis of Czech Civil Procedure Act by Dr. Lutz Strohn, Chief Judge of the High Land Court Düsseldorf ”, Twinning Project CZ 01/ IB/JH/01 Judicial Reform and Court Management Czech Republic – Germany – United Kingdom (unpublished, 2003, on file with the author), 7 (hereinafter “Report on Outcomes”), where he explains that formalism is in fact caused by judges’ failure to orientate themselves in a very complicated legal order; moreover, one that is in a constant state of flux.

54

Cf. Chapter 3, Part I.2.

55

Cited by M. Gillis, “Lustration and Decommunisation”, in: J. Přibáň and J. Young (eds.), The Rule of Law in Central Europe (Ashgate Publishing, Dartmouth, UK, 1999), 65.

56

Critically, for instance, “Report on Outcomes”, op.cit. note 53; or “Koncepce stabilizace justice” [The Conception of the Stabilization of the Judiciary], internal document of the Czech Ministry of Justice (2004), available at .

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the same issue. In the course of the 1990s, the ordinary courts ratcheted up their formalism in order to quickly and easily dispose of as many cases as possible. If the plaintiff made any mistake—however trivial—it was deemed to be an irreparable error, and the action was automatically dismissed. This has been a welcome tool used by courts to lighten their increasing workload and, at the same time, to demonstrate their industry: in the bureaucratic system of judicial administration, any decision made by a court counts in its favor for the evaluation of that court’s efficiency (which is done in the Czech Republic by the Ministry of Justice). In fact, the formalist system of evaluation of judges57 may further contribute to these formalist tendencies. Another aggravating factor might also be the fact that judges, facing the absence of qualified non-judicial personnel, are required to engage in numerous rather bureaucratic activities (as I have highlighted in the previous chapter), in consequence of which a very limited amount of time remains for them to consider the merits of a case. A formalist judge— dismissing automatically all her cases for trivialities—is, in the formalist system of evaluation of judges, deemed much more efficient than her counterpart who does not focus on petty problems and attempts to resolve cases on the merits.58 This problem is illustrated by the many restitution suits which were dismissed for minor technical error in naming the proper defendant. In such cases, the plaintiff had designated—as the person obligated to return the land in question—a municipal authority, which was listed in the land 57

Cf. findings by Western judges based on interviews with Czech judges by European experts in 2003 in: J. Dreßel, “A Report on Findings from the Analysis of Legal Enactments in the Area of the Structure of the Judiciary, The Distribution of Jurisdiction within that System and the Organization of Courts in the Czech Republic”, Twinning Project CZ 01/IB/JH/01 Judicial Reform and Court Management Czech Republic – Germany – United Kingdom (unpublished, 2003, on file with the author). The report argues that judges are in fact pressed to ‘get rid of ’ their cases as soon as possible: “The practice of the ministry might direct judges away from deciding strictly in terms of professional criteria in favor of resolving matters as rapidly as possible”, ibid., 12-13. A judge who receives bad evaluations must give reasons as to why it has taken her a longer time to decide her cases. In view of the constitutional guarantee of judicial independence, such an extensive degree of ministerial interference with judicial decision-making is highly questionable, which is shown by the Czech Constitutional Court’s condemnation of such a practice in its decision of 18 June 2002, Pl. ÚS 7/02 (in English) available at .

58

Accord: a judge of the Brno Regional Court, Boris Filemon, in his commentary on a decision of his court, sign. 11 Cms 231/96, published in: Jurisprudence, Vynutitelnost práva a právní praxe (2000) Nos.4-5, 34ff. This opinion, critical of the old-fashioned method of ministerial evaluations having their origins in pre-Communist times, is widespread among the judiciary. Cf. also the preceding note.

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register as the owner. When, after a delay of nearly four years, the ordinary court commenced consideration of the case, it noted that the plaintiff had designated an improper defendant, as municipal authorities do not have legal personality; hence, they cannot be sued. Despite the fact that shortly afterwards the plaintiff amended his pleadings, correctly designating as the defendant the municipality which acts through its municipal authority, the ordinary court dismissed the case because the defendant, as originally listed, was a ‘non-subject’. Due to the court’s long inaction and its sudden and final dismissal, the plaintiff—as a result of the statute of limitations—had already lost his procedural right to file his claim anew. The Constitutional Court, deciding on the basis of a constitutional complaint, condemned the ordinary court’s formalism. The plaintiff must be given the opportunity to correct an error, if such error is obvious and there is no doubt about the real identity of the defendant. This is even more the case where the plaintiff prepared his action in reliance on the land register data.59 A related problem is that the ordinary judiciary—including the Czech Supreme Court—attempts to find any defect, however trivial, in the plaintiff ’s claim to avoid reaching the merits of the case. Because of the absurdity of such issues, many defendants do not even raise them. An example is presented by a quite complicated case where the Czech Social Democratic Party claimed the return of property which was allegedly never properly nationalized by the former regime. The key issue was whether this party was the same political party which had been forced to merge with the Communist Party in 1948. The Social Democrats claimed that this merger was illegal even under the then valid Communist laws and insisted this meant that the ‘real’ Social Democratic Party had never ceased to exist and was active in the United Kingdom and other Western European countries. None of the ordinary courts dealing with the case attempted to go into the complexity of the issues it raised, although the appellate court did acknowledge that the issue of the party’s legal continuity was crucial and certified that issue to the Supreme Court. Yet, the Supreme Court refused to deal with it and dismissed the case due to the fact that— sometime between 1945 and 1990—a mere three out of 3,500 shares of a corporation (which was controlled by the Social Democratic Party and which was formally the owner of the property) disappeared from the public deposit in the state archive. Until these missing shares were found or redeemed, the action was inadmissible, the Supreme Court argued. The Constitutional Court—before ruling on the merits that, in view of 59

Decision III. ÚS 454/98, 14 ÚS (1999), 3.

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the conditions of the totalitarian regime, the Czech Social Democratic Party never ceased to exist—addressed the formalist argument made by the Supreme Court. The deposit of the shares was required by a 1945 law. The ordinary courts found that the complete set of 3,500 shares had been deposited on a timely and proper basis. The loss occurred while the shares were on deposit in the state’s archive. For the Constitutional Court, the Supreme Court’s formalist reason was not difficult to rebuff: “The loss was beyond the ability of the depositing party to control. Rather, the depository institution must be held responsible for this loss. […] The statements by the lower courts that the Czechoslovak Social Democratic Party did not present the shares […] are simply inappropriate under these circumstances.”60

The Constitutional Court’s attempts to transform judicial methodology have led to it becoming overburdened with cases. The dramatic increase in the number of cases is due to constitutional complaints against decisions of the ordinary judiciary, which—save for a negligible percentage—make up all cases decided by the Court. It is evident that, in the long run, the Constitutional Court cannot continue to cope with such a caseload, especially in view of the fact that the Constitutional Court does not have the power to select the cases to which it will give consideration, for example, by a system of certiorari.61 II.2. Limited Law and Limited Sources of Law The cases described above demonstrate that the democratic aftermath of the former Communist style of legal education and the use in the new democracies of a formalist model of legal reasoning, typical of the late Communist era, have created a specific judicial ideology that can be well described—in the words of a prominent contemporary Hungarian legal philosopher—as “the degeneration of legal positivism”62 or “a dull rulepositivism”.63 Under the commonly held perception, the work of a judge is thought of as primarily mechanical. It might be said that the quality of judicial and legal reasoning is poor. Inability to engage in creative judicial decision-making seems to be a problem common to post-Communist 60

Decision III. ÚS 462/98, 17 ÚS (1999), 7.

61

See an interview with the former Minister of Justice and subsequently appointed Chief Justice of the Czech Constitutional Court, P. Rychetský: “Rychetský: Neodcházím s pocitem dobře vykonané práce” [I Am not Leaving with the Feeling that my Work Has Been Satisfactorily Completed.], Lidové noviny (16 August 2003).

62

C. Varga, Transition to Rule of Law: On the Democratic Transformation in Hungary (Faculty of Law of Loránd Eötvös University and Institute for Legal Studies of the Hungarian Academy of Sciences in Budapest, Budapest, 1995), 83.

63

Ibid., 142.

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countries.64 The governing conception of law in Central Europe and very likely more or less throughout the whole post-Communist region is, at first sight, the old fashioned positivistic doctrine, which—as I shall demonstrate in due course—is nicely captured in David Lyons’ term ‘the theory of limited law’65 or in Roscoe Pound’s ‘mechanical jurisprudence’.66 This simplified conception of law proved to be considerably resistant to modification. Legal education in, and notions of, creative interpretation are almost entirely lacking. However, the complexity of life has placed no small amount of pressure on judges to change their position towards the application of law. One can notice, for instance, an apparent trend towards longer and more complex judicial opinions in comparison with the situation that prevailed two decades ago. Empirical data throughout the region show that the sharply rising complexity of disputes has led to an increase in the length of judicial opinions. According to a Hungarian commentator, while in the late 1970s most reported decisions were no longer than half a page, in the late 1990s they were four to six times longer.67 In the Czech Republic, the trends with respect to the Czech Supreme Court and Supreme Administrative Courts are similar.68 The fact that post-Communist judicial opinions are slowly becoming longer is yet another sign of the gradual erosion of the post-Communist conception of limited law. Judges are increasingly coming to feel that—in order to reason and justify their decisions—it is not sufficient to merely recite the relevant code provision and then employ a simple legal syllogism. Additional arguments are needed to explain why they decided in just the way they did. Judges who understand this problem can also see that one cannot take literally their legalistic ideal of an omni-solving legal text. When the text provides no sufficient solution, other arguments and standards must come into the play. 64

Cf. on Hungary, A. Sajo, “The Judiciary in Contemporary Society: Hungary”, 25 Case W. Res. J. Int’l L. (1993), 293, at 300.

65

D. Lyons, “Justification and Judicial Responsibility”, 72 Cal. Law R. (1984), 178.

66

R. Pound, “Mechanical Jurisprudence”, 8 Colum. L. Rev. (1908), 605.

67

B. Pokol, The Concept of Law. The Multi-Layered Legal System (Rejtjel Edition, Budapest, 2001), 79.

68

In Slovakia, the changes are less visible and the length of reported decisions is still quite similar to that of Czechoslovak Supreme Court decisions throughout the 1970s and 1980s. Yet, formalism appears to be more prevalent in Slovakia. Two major factors may account for this difference. First, I have already noted the complete lack of judicial discourse between the Slovak Constitutional Court and the ordinary judiciary. Moreover, even if an ordinary judge followed the Constitutional Court’s jurisprudence, she would find out that the Court’s reasoning is quite rigid and adheres to the text much more than its Central European counterparts. Cf. Procházka op.cit. note 15, 260.

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The conception of limited law corresponds to the hard conception of law, i.e., the conception which equates law with ‘the law’ (i.e., statutes as enacted by the legislature).69 This reflects the ideology of bound judicial decision-making, where it is quite easy to distinguish legally relevant and irrelevant arguments. Thus, the conception of limited law also embraces the conception of limited sources of law, which rests on the dichotomy between binding and non-binding arguments. Soft law70 and persuasive sources of law71 are excluded from the judicial process. Judges who are adherents to the conception of limited law consider themselves bound only by ‘the law’, which means the written law as enacted by the legislature. The hard conception of law has also permeated the discourse and attitudes towards the harmonization of Central European legal order with the EU law, when exaggerated emphasis has been given on the enactment of new laws formally incorporating the acquis, while the attention to the actual application of these new laws in practice was close to nil.72 Following their Communist predecessors, post-Communist judges hesitate to apply general clauses of the codes or general principles of law.73 Too many judges seem to follow the thesis of the Communist doctrine: general clauses or general principles of the law are not ‘real’ law. After all, their content is not precise enough; moreover, to apply them would be ‘duplicating’ real law. Therefore, they do not fit the ideology of textual positivism. Even in the late 1990s, post-Communist lawyers often published articles where they evaluated general clauses as rather unimportant parts of the major codes. While the clauses on good morals and good faith in 69

Cf. a similar conception by a Polish law professor and judge of the Supreme Administrative Court, M. Zirk-Sadowski, “Transformation and Integration of Legal Cultures and Discourses – Poland”, see (visited on 4 January 2006), 13-14. He defines the conception of hard law as being composed of rules only and having: “[...] strictly determined limits. The demand is that these rules be explicit so that they could effectively perform the function of controlling society.”

70

M.W. Hesselink, The New European Legal Culture (Kluwer Law International, Deventer, The Netherlands, 2001), 58ff.

71

P.H. Glenn, “Persuasive Authority”, 32 McGill Law Journal (1987), 261, at 264.

72

Of course, in this respect, errors have been committed on both sides—by the newly acceding states as well as by the EU, which did not sufficiently emphasize the aspect of the proper and rational application of harmonized laws. Cf. critically, F. Emmert, “Administrative and Court Reform in Central and Eastern Europe”, 9 European Law Journal (2003), 288.

73

Pokol, op.cit. note 67, 78 (in its reasoning, Hungarian case law does not make use of general principles of law).

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Western European legal systems have been thoroughly considered through abundant case law,74 post-Communist judges have only very slowly begun to discover the hidden magic of general clauses. The typical post-Communist conception of judicial independence includes the proposition that judges must decide only according to ‘the law’, which, however, effectively means that in hard cases—and even in some easy cases—where a simple logical syllogism cannot be applied, they might decide in the way they see fit.75 Judges guided by the ideology of bound judicial decision-making are not obliged to give consideration to precedents, legal writings, the intention of the legislature, or the rationally reconstructed purpose of the law—all of which constitute something which is not ‘law’ in the ideology of bound judicial decision-making and textual positivism. They must adhere only to the letter of the law; where the letter of the law does not offer any easy solution, pure arbitrariness and unpredictability can enter the scene. Even those judges who understand the value of persuasive sources of law do not usually acknowledge openly, in their opinions, that they make use of such sources. Yet, the problem relating to this reticence lies not only in the aesthetics of judicial opinions. The very fact that these persuasive authorities are not openly cited causes many other judges to think that persuasive authorities are without any merits. In a simplified intellectual world of limited law, everything is either binding (therefore, legally relevant) or non-binding (and, therefore, legally irrelevant). It is not uncommon to find a judge—especially in the lower courts—who during trial rejects even any reference to precedent or legal science because she is not ‘bound by them’; therefore, they are without any importance for her reasoning, which remains independent of anything but the letter of the law.76 Even though it is not admitted by those espousing the concept of limited law, this sort of judicial independence results in the antithesis of judges being ‘bound’ by law, as the law’s inability to unequivocally determine for them a clearly obvious outcome results in them not being bound by anything at all. 74

E.g., J.P. Dawson, The Oracles of the Law (The University of Michigan School of Law, Ann Arbor, MI, 1968), 479.

75

According to some authors, that is one the reason the independence of judges is “a concept often misunderstood” in the post-Communist region. Cf. F. Emmert, “The Independence of Judges: A Concept Often Misunderstood in Central and Eastern Europe”, 3 European Journal of Law Reform (2002), 405.

76

Cf. the astonishment of a Western observer in Estonia, Professor Frank Emmert, ibid.; or id., op.cit. note 72, 295-296. Between 1997 and 2001, I have encountered such an attitude several times; my fellow Czech lawyers have also recounted to me their experiences of such harsh judicial rejections.

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It is against this backdrop that one must read the Czech Constitutional Court’s attempts to compel the ordinary courts to formulate their decisions in a more predictable and more rational way by reaching beyond their limited concept of law. Emphasis is placed on the constitutional value of rational decision-making. It must be explained to ordinary judges—who set so much store in a conception of their judicial independence which, in effect, enables them arbitrarily to interpret and apply in any manner they please—that judicial independence is not a concept that exists in splendid isolation. The Czech Constitutional Court, dealing with a case in which the ordinary court had not explained which facts it had established and which interpretation of the law had led it to its decision, held that the independence of judicial law-making takes place within the constitutional procedural and substantive framework. The procedural framework is, above all, represented by the principles of a fair trial. One of these principles is also the duty of courts to justify their decisions. The relationship between the facts found by court and deliberations in evaluation of evidence, on the one hand, and solutions relating to the application of law, on the other, must be evident from the justification.77 Accordingly, a decision can also be unconstitutional if there is an extreme conflict between the evidence admitted by the court and the legal solution reached by it, if the solution cannot be related to the evidence by any reasonable means.78 Moreover, the Constitutional Court held that an ordinary court decision could, under certain circumstances, be unconstitutional if it is impossible to review the interpretation of the law it relied upon because of, for instance, the brevity of its reasoning. Therefore, it is unconstitutional if in a case involving “an evidently difficult problem of law, the ordinary court devoted a mere two terse paragraphs to the actual justification of its decision and in it completely omitted the plaintiff ’s arguments; and moreover incorporated into its decision a conclusion that in essence is not sufficiently comprehensible.”79

Accordingly, a decision is also unconstitutional in cases where the evidence admitted and facts found by the court are in extreme conflict with the legal solution reached by it, if the solution cannot be related to the evidence by any reasonable means. In considering the rather deficient level of judicial justification in Central Europe, the Common-Law observer always, however, needs to bear in mind that the Continental culture of writing judicial opinions 77

Decision III. ÚS 84/94, 3 ÚS (1995), 257.

78

Ibid.

79

Decision III. ÚS 176/96, 6 ÚS (1996), 151.

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still seems to rely more on the old conception of a judicial opinion as the product of authority rather than reason; in other words, a Continental judicial opinion still tends to be less analytical than its Common-Law counterpart.80 The basic value of a Continental judicial opinion lies in its clarity and conciseness; it should be added, however, that brevity is often preferred at the expense of a persuasive and correct decision. Even in the area of the Continental constitutional judiciary, the dogmatic influence of this idea pervades the jurisprudence. While the opinions of CommonLaw judges have traditionally functioned as the main communicators of law to law students, in Continental law systems the traditional medium between courts and law students have not been judicial decisions themselves but, rather, a law professor’s textbook explaining case law.81 Although this situation is changing and judicial opinions—above all, constitutional court opinions—are increasingly studied throughout Continental countries, some remnants of this old ideology are still reflected in the judicial style. II.2.1. Listening to Legal Academia The Central European legal tradition rests on close co-operation between legal academia and judges. This tradition goes back centuries to the time preceding the creation of the modern Central European systems in the nineteenth century. Judges in German-speaking (and in neighboring) countries always drew much of their expertise from indigenous legal science.82 Obviously, the opinions expressed in legal science are not binding; neither are precedents—at least not in the way civilians usually conceive of binding force. In a simple dichotomy of the conception of limited law it might mean, however, as I have already indicated, that neither doctrinal writings nor precedents have any relevance whatsoever. The Communist legacy of the insulation of legal scholarship from judicial decision-making has had important implications. The first visible feature of Central European legal systems, which can be found through even a cursory review of Central European judicial decisions, is the lack of citation to legal writings.83 It is true that espe80

Generally, see, D.N. MacCormick and R.S. Summers (eds.), Interpreting Statutes: A Comparative Study (Dartmouth Publishing, Aldershot, UK, 1991); MacCormick and Summers, op.cit. note 37.

81

Cf. R. David and J.E.C. Brierley, Major Legal Systems in the World Today. An Introduction to the Comparative Study of Law (Stevens & Son, London, 3rd ed. 1985), 378.

82

On this, see Dawson, op.cit. note 74, 148-262 (explaining “Germany’s commitment to legal science”). Cf. also Cf. Hesselink, op.cit. note 70, 15.

83

Pokol, op.cit. note 67, 78 (no references to the legal literature whatsoever can be found in Hungarian case law).

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cially high court judges know the doctrine and often follow it without acknowledging it.84 Despite this fact, I would contend that—precisely because the authorities used by courts are not expressly revealed—the quality of argumentation and its structure lacks an important tool. The sole (albeit limited) exception is opinion-writing at the constitutional courts, although even the references which those courts make to literature are rather random and unsystematic.85 In addition, the Czech Constitutional Court—perhaps both because of the fact that the main lines of its jurisprudence are in tension with domestic doctrine and that domestic legal theory is quite weak—openly prefers citations to foreign (mostly German) sources and often ignores domestic writings, which further alienates domestic scholarship. As a result the collaboration between scholars and judges, so typical for Continental legal culture, is seriously hampered. On the one hand, case notes and critical analyses of case law have mostly disappeared from the Central European region during the Communist period (with Poland as an exception).86 Many commentaries87 lack any scientific or creative aspiration and consist mostly of a recital of the provisions of the law. Clearly this is a legacy of the Communist era, as described above, but also of the lack of resources and low salaries in legal academia, where academics do not have time to analyze and criticize their own courts’ case law. Moreover, Central and Eastern Europe are made up primarily of small countries which have a small number of law faculties and few academics. For instance, at present the Czech Republic, a nation of ten million, only has four law faculties. Taking into account the parochial attitude of local academia, it should come as no surprise that a situation in countries where all scholars and high court judges know each other personally is not conducive to an atmosphere of open and critical discourse.88 84

In the 2001 volume of Zbierka stanovísk Najvyššieho súdu a rozhodnutí súdov Slovenskej republiky [Collection of Statements of the Supreme Court and the Decisions of the Law Courts of the Republic of Slovakia], for example, there are no citations of legal doctrine.

85

My own analysis of the case law of the Polish, Czech and Slovak constitutional courts.

86

Cf. Emmert, op.cit. note 72, 314: “critical academic discussion of case law and regulatory action should be encouraged”.

87

The commentary is a typical product of Germanic legal culture, in which the text of a law is commented upon by scholars. In Germany, commentaries have strong persuasive force and are counted among the most elite works of legal scholarship.

88

The better situation in Poland might be explained by the fact that Poland is a big country with tens of law faculties. Moreover, the material situation of Polish scholars is better than the situation of the academics in the countries of former Czechoslovakia. While the pay of a law professor in Warsaw is more or less similar to the pay

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Although the situation is improving, the destruction of legal academia and ties between legal scholarship and the judiciary affected during the Communist era cannot easily be restored. Perhaps because of this, the Czech Constitutional Court in its ongoing discourse with the ordinary courts has pressed them to go beyond their conception of limited law: the Court highlighted that an ordinary court decides arbitrarily—and, therefore, unconstitutionally—if without any clear and proper reason, it applies a legal term in a manner contrary to its meaning based on the consensus of legal academia.89 The conception of limited law is reflected also in the culture of quotation and references to legal writings and precedents. As legal writings during the Communist era ceased to have any scholarly aspiration, the culture of citations in both legal writings and judicial decision-making diminished. The lack of judicial quotations to case law and to legal literature would not surprise observers of many Continental countries, especially those familiar with the French legal culture of judicial decision-making. However, we must be aware that the French or Italian style of opinion writing has always differed markedly from the Central European judicial style.90 Furthermore, whereas in France legal literature has an important impact especially in the second, internal legal discourse,91 in the post-Communist region the impact of legal literature—especially in the lower court bound by ‘nothing but the statute’—might be very small. The lower courts would often ignore any reference made by the parties to legal literature (including authoritative commentaries) or precedents, a habit which tends to delay ultimate resolution of a matter because it results in the lower court’s decision being reversed on appeal due to the incorrect interpretation of the law and being remanded for further proceedings.92 of an appellate court judge, the pay of a law professor in Prague is equivalent to the average salary in Prague and amount to about one-third of the pay of an appellate judge. The information concerning Poland is drawn from the interview which I conducted (in Budapest, on 19 June 2004) with Miroslaw Wyrzykowski, a Justice of the Polish Constitutional Tribunal and former Dean of the Warsaw Faculty of Law. 89

Decision III. ÚS 138/2000, 21 ÚS (2001), 451.

90

The decisions of Austrian courts and courts of the Czechoslovak Republic between 1918 and 1939 regularly made reference to legal scholarship.

91

See Chapter 3, Part I.4. supra.

92

I speak also from my own experience, in the late 1990s, as a practitioner. One decision of this type I have published and commented on, see “Rozhodování o náhradě nákladů řízení o předběžném opatření” [Decisions on Awarding the Costs of Proceedings in an Injunction], Jurisprudence, Vynutitelnost práva a právní praxe (1999) Nos.9-10, 14ff.

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This sharp break with the traditions of legal reasoning which one finds in Communist Central Europe can be illustrated by the radical difference between the styles of judicial opinion-writing, as well as quotation to legal science and precedents, in the two Germanys between the early 1950s and 1990.93 In contrast, however, the lack of use of doctrinal sources and precedent (see below) by Central European judges is not due to the establishment and development of a separate legal culture. It is rather an impressive indication of the deterioration of legal culture, its conception of legal reasoning and establishment of the conception of limited law and limited legal sources. In fact, although the Czech Constitutional Court has sent many important signals to the ordinary judiciary, its culture of citing is also rather poor; as yet, it has even failed to develop a proper style of reference to its own precedents. The same is more or less true for other post-Communist constitutional courts. II.2.2. The Issue of Precedent Renewed discussion on the role of precedent appeared in Central Europe shortly after the fall of the Communist regimes. With the emergence of judicial review and the overall rise of the judiciary, the old clichés concerning the role of precedent in the legal system began to be questioned throughout post-Communist Europe—although the impact of this discussion, so far, has been rather low and has not touched legal practice or legal education to any discernable degree.94 One might still plausibly claim that the issue of precedent is neglected in Central Europe. Law students for the most part do not study cases; they are not used to working with them: the existing education method is statutory rule-oriented, and many students do not encounter a single judicial decision throughout their entire program of university study. Though in recent years the emphasis on precedents in legal education has been improving, they are approached in a peculiarly scholastic way—their headnotes are viewed as further material for students to memorize. We should not be surprised that Continental legal science adamantly denies that judicial precedents have any binding force. Putting aside other 93

See M. Forster, “The Significance and Function of Legal Citations: Comparative-law Efforts to Standardize Citation Practice”, in: V. Gessner, A. Hoeland, C. Varga (eds.), European Law Cultures (Dartmouth Publishing, Aldershot, UK, 1996), 128-131.

94

On similar discussions in Russia, cf. W.E. Butler, “Judicial Precedent as a Source of Russian Law”, in: J.A.R. Nafziger and S.C. Symeonides (eds.), Law and Justice in a Multistate World: Essays in Honor of Arthur T. Von Mehren (Transnational Publishers, Ardsley, NY, 2002), 583-593. See, also, Harold J. Berman, “Interpretation of Laws”, in: Ferdinand J.M. Feldbrugge, Gerard P. van den Berg and William B. Simons (eds.), Encyclopedia of Soviet Law (Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 2nd. ed. 1985), 396-397.

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reasons, this is due to the fact that the Continental lawyers understand the term ‘precedent’ to mean something different and much more rigid than do their Common-Law counterparts. The English doctrine that precedent cannot be overruled even by the highest court itself—although repudiated even in Britain in 1966—still has still a huge impact on Continental legal thinking which identifies the concept of precedent basically with this English notion. As Dawson put it: “The hostility still shown in France toward the whole conception of judicial precedent may be due in part to dismay inspired by the English example. […] The extreme to which the English doctrine of precedent has been carried during the last seventy years [1898-1966] has helped, I believe, to perpetuate in Europe a basic misunderstanding, by obscuring a primary purpose of a system of precedent. That purpose is to restrict, not to enlarge, the powers of judges.”95

Moreover, Continental judges, including post-Communist ones, operate within a judicial culture which approaches the hierarchical ideal of state authority, based on a strictly hierarchical ordering, specialization and a logically legalistic attitude, which stands in clear contrast to the less hierarchical, more pragmatic and more substance and problem-oriented Common-Law judges.96 Thus, it is very likely that establishing a rule of precedent in Continental systems—and above all in post-Communist systems—would entail the extension of mechanical textual positivism to the sphere of case law. These formalist and mechanical Continental predispositions are plainly seen in the growing number of complaints in Western Europe about the phenomenon of ‘case positivism’, i.e., a too rigid observance of judge-made rules as formulated in the earliest reported decisions while disregarding the entirely divergent facts of later cases.97 When Common-Law lawyers praise the virtues of their system of precedents, they have in mind the flexibility of law; when their East European counterparts think about the same problem, they are always afraid of the law’s rigidity. In the words of Mirjan Damaška, if precedent were recognized as legally binding in Continental Europe: “decisional standards would in time become intolerably rigid, each new decision a drop in the formation of an ever longer stalactite of norms. In short, while a judicial organization composed of loosely hierarchical judges may require a doctrine of bind-

95

Dawson, op.cit. note 74, 413-414.

96

Cf. M. Damaška, The Faces of Justice and State Authority. A Comparative Approach to the Legal Process (Yale University Press, New Haven, CT, London, 1986), 18ff.

97

Cf. a number of reports in: MacCormick and Summers, op.cit. note 37, especially: A. Aarnio, “Precedent in Finland”, ibid., 93; and M. Taruffo and M. La Torre, “Precedent in Italy”, ibid., 182ff.; L. Morawski and M. Zirk-Sadowski, “Precedent in Poland”, ibid., 231.

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ing precedent as an internal ideological stabilizer, a hierarchical career judiciary may well be better off without it.”98

Therefore, the fact that domestic scholarship in Central Europe continues to deny the binding force of precedent would not, in itself, be tragic because such a view is not uncommon even in Western Europe. Yet, there is still a chasm between main-stream legal-positivist philosophy and actual practice relating to the importance and normative analysis of precedent in legal reasoning in Continental Law—particularly in Central Europe governed by the old-fashioned ideology of legal interpretation. Post-Communist textbooks on legal theory, argumentation or procedure usually emphasize that precedents are not law, even though it is admitted that they have de facto influence on future cases. This de facto influence refers to the fact that precedent is usually followed by judges, although they have no duty to do so. These opinions are not unlike those of twentieth-century mainstream Western European legal theories on precedent,99 although the latter are increasingly criticized as not being sophisticated enough. For instance, in the late 1990s, the late Aleksander Peczenik remarked that the conception of ‘in fact binding precedent’ is a contradiction in adiecto, as the very term ‘binding’ implies at least some normative force.100 A new wave of Western European legal doctrine seeks to overcome the gap between theory and practice by rejecting the binding/non-binding dichotomy as oversimplified and unrealistic and by replacing it with a continuum of differing relevancies of precedent and less dogmatic methodology. It has introduced more realistic approaches, such as emphasis on persuasive authority or substantive reasons of legal argumentation.101 98

Damaška, op.cit. note 96, 37, note 37.

99

In the Continental legal culture, judicial precedent is not a source of law because it has no legal force of its own; rather, its force depends on the continuing existence of a statute, custom, or perhaps a legal principle. See K. Larenz, Methodenlehre der Rechtwissenschaft (Springer Verlag, Berlin, New York, NY, 1983), 351-419, esp. 412-419. The actual difference between Common Law and Civil Law is rather in point of view than in reality.

100

See A. Peczenik, “The Binding Force of Precedent”, in: MacCormick and Summers, op.cit. note 37, 466

101

For a recent and already a classic analysis on this theoretical issue, using a comparative approach, see MacCormick and Summers, op.cit. note 37, especially: Peczenik, op.cit. note 100, 461ff.; D.N. MacCormick and R.S. Summers, “Further General Reflections and Conclusions”, ibid., 544ff. Cf. Glenn, op.cit. note 71; R.S. Summers, “Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification”, 63 Cornell L.R. (1978), 707; and C. McCrudden, “A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights”, in: K.O. Donovan and G.R. Rubin (eds.), Human Rights and Legal History, Essays in Honour of Brian Simpson

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If we view bindingness as a continuum, we can see that bindingness is not one side of a dichotomy but, rather, one type on a continuum that also includes weaker forms of bindingness.102 It is a problem unique to post-Communist countries that domestic scholarship and the judiciary sometimes take too ‘literally’ the dogma that a judge is free to refuse precedent. Because any persuasive sources of law are beyond the ken of many socialist scholars and judges, precedent is rather weightless. Post-Communist academics and judges understand precedent as operating in judicial decision-making by diminishing the competence of the legislature, whereas recent legal science in Continental Europe rightly observes that precedent serves to avoid anarchy in the judicial application of law.103 That is why the contemporary notion of precedent in Central European is saddled with simplified features of the former socialist and pre-socialist legal thinking. Surprisingly enough, old-fashioned traditional ideas about precedents still dominate judicial and legal discourse. Instead of precedent, all Central European legal systems continue to use judicial interpretational statements, a particular instrument of unbound judicial law-making par excellence. In fact all Central European legal systems continue to use this institution, unknown in Western legal cultures. Judicial interpretational statements—a tool of judicial ‘law-making’ developed in Central Europe during the Communist era104—are issued by supreme courts on a specific legal issue in order to unify the conflicting case law. Unlike the situation in some states prior to 1990, such statements are not formally binding at present—although they naturally possess a high degree of persuasive force throughout the judicial system. The statements do not have a direct impact on any individual case, because they are decided in abstracto, upon a motion of the Court, minister of justice or similar authorities, when these bodies opine that the interest of uniform case law so demands.105 In Hungary—the only system with a (Oxford University Press, Oxford, New York, NY, 2000), 42-43; in Continental Law: R. Alexy (1989), A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Clarendon Press, Oxford, N. MacCormick and R. Adler transl. 1989). 102

Peczenik, op.cit. note 100, 478.

103

Cf. Pokol, op.cit. note 67, 88: “Precedents […] do not take away the legislator’s decision making competence but narrow individual judges’ freedom of consideration.”

104

See Chapter 3 supra.

105

In the Czech Republic, the competence to request such a statement is vested also in the Minister of Justice; see Art.123 (3) and Art.14 (3) of the Act on the Judiciary of 30 November 2001, Sb. (2002) No.6. Similarly in Slovakia, see Art.21 (3) and Art.23 of the Act on the Judiciary of 9 December 2004, Z.z. (2004) No.757. In Poland, Su-

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pre-Communist tradition of this abstract judicial law-making in Central and Eastern Europe—these so-called ‘uniformity decisions’ are even formally binding so that the lower courts must follow the interpretative directions set forth therein.106 Western judges react to this post-Communist institution with a mixture of surprise and embarrassment,107 because they view it as in conflict with their ideal that the judiciary makes law only through deciding cases, ‘interstitially’, as Justice Holmes once famously noted,108 not through making law in abstracto. Thus, it is possible to argue that the continuing adherence to this institution confirms what the post-Communist systems understand by the notion of judicial law-making and demonstrates why they have difficulties in understanding proper judicial law-making. In addition, a minister’s power to request such a statement might be misused to intervene in politically sensitive cases. Another difference is the minimal influence of broader comparative and transnational perspectives on post-Communist doctrine. It is now fashionable in Western law to emphasize functional similarities and the ‘building of bridges’.109 Contemporary European law—obviously also under the influence of current ideological and political trends of European preme Court resolutions can be requested by the Spokesman for Citizens’ Rights, the Public Prosecutor General or, within his/her competence, by the Spokesman for the Insured. See Art.60 (2) of the Act on the Supreme Court of 23 November 2002, Dz.U. (2002) No.101 item 924 (in English) available at . 106

See Arts.24-25 of Act LXVI of 1997 on the Organization and Administration of the Courts (in English); basic information available at . Cf. Á. Erdei, “Law of Criminal Procedure”, in: A. Harmathy (ed.), Introduction to Hungarian Law (Kluwer Law International, The Hague, London, Boston, 1998), 211.

107

As did German judges, for example, in their 2003 reports on the Czech judiciary. They all criticized this institution, which they believe is a waste of the Supreme Court’s energy. Moreover, they noted that it solves a question in abstracto, without a proper judicial testing on the lower levels. “A Set of Proposals for the Czech Judiciary the Area of Organization of the Judiciary and Civil and Criminal Procedure”, Twinning Project CZ 01/IB/JH/01 Judicial Reform and Court Management Czech Republic – Germany – United Kingdom (unpublished, 2003, on file with the author).

108

Southern Pacific Co. v. Jensen, 244 US 205, at 221 (1917); Holmes, J., dissenting: “I recognize without hesitation that judges must and do legislature, but they do so only interstitially; they are confined from molar to molecular motions.”

109

The comparative project, “The Principles of European Contract Law”, attempts “the construction of a bridge between the Continental law and the common law”. See O. Lando and H. Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague, London, Boston, 2nd ed. 2000), xxii.

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integration110—does not stress the divergence between Common Law and Continental Law. Moreover, the importance of transnational and international adjudicatory bodies has vastly increased in the last five decades, and tribunals such as the European Court of Human Rights (ECtHR) or the European Court of Justice (ECJ) represent none of the traditionally established legal cultures.111 The ECJ claims to have found a ‘common core of human rights’ shared by the fifteen Member States of the EU, “the ideas common to the constitutions of the Member States”,112 which was in part inspired by the work of the ECtHR.113 In fact, if the different legal systems of Common Law and Continental Law are viewed from a more general perspective, not only as a set of particular legal rules, they seem to have so many similarities that we can speak about one diverse Western legal culture.114 110

Cf. J. Hill, “Comparative Law, Law Reform and Legal Theory”, 9 Oxford Journal of Legal Studies (1989), 101, where he emphasizes the broader political trends of contemporary Western society calling for this perspective: “The way in which the available data is interpreted depends on a variety of factors, including political and ideological considerations.” Ibid., 111. Cf. M. Reimann, “The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century”, 50 Am. J. Comp. L. (2002), 671, 691ff.

111

On the deficiencies of traditional comparative law doctrine to face the realities of the era of globalization, see M. Reimann, “Beyond National Systems: A Comparative Law for the International Age”, 75 Tulane Law Review (2000), 1103.

112

E.g., case C-44/79, Liselotte Hauer v. Land Rheinland-Pfalz, ECR (1979), 3727.

113

The ECJ will continue in this approach in the expanded EU of 27 Member States. For instance, Advocate General Sir Francis Jacobs, in support of his broader conception of standing, had argued his position—before the 2004 EU Enlargement—not only on the basis of the laws of the EU member states but, also, those of the then EU candidate states. See the opinion of Advocate General Jacobs, delivered on 21 March 2002, in case C-50/00 P, Unión de Pequeños Agricultores v. Council of the European Union, ECR (2002) I-6677, para. 89, proposing a broader reading of the fourth paragraph of Art.230 EC, regarding individual standing directly to challenge a regulation before the European courts and referring to some member states and the rulings of their constitutional (or other) courts which have enabled individuals to challenge national legislation in this way, as well as to “the States currently applying for membership of the European Union”.

114

For example: R. David, “On the Concept of Western Law”, 52 U. Cin. L. Rev. (1983), 126; U. Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”, 45 Am.J.Comp.L. (1997), 5 (Western countries form a system of professional law, while most former socialist countries and the countries of the Third World, as well as many developed non-European countries, like Japan, Thailand etc., form either systems of political law or religious law); and M. van Hoecke and M. Warrington, “Legal Cultures, Legal Paradigms, and Legal Doctrine: Towards a New Model for Comparative Law”, 47 ICLQ (1998), 495 (distinguishing Western legal culture, based on individualism and rationalism, from Non-Western legal cultures: Asian legal culture with a collectivist approach, Islamic legal culture which does not recognize the separation of law, morals and religion, and African legal culture).

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In contrast, mainstream Central European legal discourse is still governed by the pre-Communist and Communist rhetoric on the insurmountable differences between both legal cultures. The spirit of the ‘fundamental distinction’115 between Common Law and Continental Law still persists in the post-Communist region. ‘We have no precedent in our system of law: we are not Common-Law judges’, is the pat response to any objections made to the traditional rejection of precedent in Central and Eastern Europe.116 This heavy reliance on the Common-Law/Continental-Law distinction seems intriguing and old-fashioned to a Western observer. A notable instance is a 2003 Czech Supreme Court judgment in which the Court dealt with the issue of whether or not it is obliged to take into account precedents of the European Court of Human Rights. The Czech Supreme Court acknowledged that, under Article 10 of the Czech Constitution, the European Convention forms a part of the municipal order of the Czech Republic. However, it placed decisive importance on Article 46 (1) of the Convention, which provides that “[t]he High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. From this, the Supreme Court drew the conclusion that: “decisions of the European Court of Human Rights do not have the character of a precedent and are binding only on the parties to individual cases.”117 The appellant sought non-pecuniary damages for his unlawful imprisonment in the Czech Republic and argued his claim in reference to two decisions of the European Court of Human Rights. The Supreme Court—after finding that decisions of the Strasbourg court are not binding precedents—noted that the first decision to which the appellant referred relates to a different country than the Czech Republic (Greece). In addition, the Court asserted that the second decision—to which the Czech Republic was a party—dealt with different facts (without further explaining either in what respects the facts differed or what consequences this entailed for the case before the Court). This hesitancy towards ECtHR precedents 115

“[T]he doctrine of the binding precedent is of such importance that it may be said to furnish the fundamental distinction between the English and the Continental legal method.” A.L. Goodhart, “Precedent in English and Continental Law”, 50 Law Quarterly Review (1934), 40, at 42.

116

Cf. Emmert, op.cit. note 72, 295.

117

Decision of the Czech Supreme Court of 25 August 2003, sign. 25 Cdo 789/2003 (unpublished but available at the Supreme Court’s website ). What is also remarkable about this case (and revealing about the attitude of that Court to international sources) is the fact that the Court mistakenly refers to the European Court of Human Rights interchangeably as the European Court of Human Rights and the European Court of Justice.

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might also be explained by the survival of the dualist perspective in the Central European legal systems, which are now prevalently monist. Although ideologically and formally decisions of the European Court of Human Rights are not actually ‘binding precedents’,118 the Western European judiciaries de-emphasize this inconvenient fact: few Western European judges take it literally and most of them behave as if these decisions constituted a sort of precedent.119 This new conception of precedent can best be exemplified by a 1999 decision of the German Federal Administrative Court which, after noting that the decisions of the ECtHR are stricto sensu binding only on the parties before the Court and relate only to the specific action being litigated, rejected the binding/ non-binding dichotomy of judicial precedents and accepted that there is a third possibility—a non-binding precedent having argumentative force: “Beyond individual cases, and subject to certain preconditions, it is nevertheless possible to attribute a certain normative guidance function [eine normative Leitfunktion] to the interpretation of the Convention by the Court, which must be taken into account by member states. When it is possible to ascertain, by resort to the established jurisprudence of the Court, an interpretation of a provision of the Convention stated to be of a general validity [allgemeine Gültigkeit], German (administrative) courts have to take this into account as a matter of precedence.”120

Similarly, the German Federal Constitutional Court ruled in 2004 that: “Being bound by statute and law (Article 20.3 of the Basic Law (Grundgesetz–GG)) includes taking into account the guarantees of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the decisions of the 118

Art.46 para. 1 of the Convention, however, does not address the issue at all. It deals only with the binding res judicata effects of judgments. Cf. generally C. Schreuer, “The Authority of International Judicial Practice in Domestic Courts”, 23 ICLQ (1974), 681, at 686.

119

For a discussion on this issue, see, e.g., Schreuer, op.cit. note 118, 694ff. (criticizing the persistent, clear-cut attempts to place international decisions either into the category of binding or non-binding because, in his view, the argumentative force of decisions of international tribunals must be explained in a more subtle way, as a part of continuum); and G. Ress, “The European Convention on Human Rights and State Parties: The Legal Effect of the Judgments of the European Court of Human Rights on the Internal Law and before Domestic Courts of the Contracting States”, in: I. Maier (ed.), Protection of Human Rights in Europe: Limits and Effects (C.F. Müller, Heidelberg, 1982), 207, 238-240.

120

BVerwGE 110, 203, at 210 (1999) (in German), available at ; translation from: H.W. Baade, “Stare Decisis in Civil Law Systems”, in: Nafziger and Symeonides, op.cit. note 94, 554 (referring also to further German discussion on the topic; see T. Masuch, “Zur fallübergreifenden Bindungswirkung von Urteilen des EGMR”, Neue Zeitschrift für Verwaltungsrecht (2000), 1266-1268).

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European Court of Human Rights (ECtHR) as part of a methodologically justifiable interpretation of the law. Both a failure to consider a decision of the ECtHR and the ‘enforcement’ of such a decision in a schematic way, in violation of priorranking law, may violate fundamental rights in conjunction with the principle of the rule of law.”121

In short, to deny the existence and significance of precedent in a system of judge-made law—such as the European system for the protection of human rights, the European Union system or, say, the domestic constitutional system of basic rights—is to go against the very heart of those systems and to render them unworkable. II.2.3. The Czech Constitutional Court on the Binding Force of Precedents of Ordinary Courts There are several major problems relating to precedent in the Central European region. Sometimes, one is witness to too much obedience; at other times, complete disobedience. The former relates to unthinking and obsequious adherence to the Supreme Court’s jurisprudence in cases when the judge-made rule should not be applied because, for any number of reasons, it simply is not appropriate for the situation; the latter concerns the issue both of conflicting Supreme Court case law and a conflicting case law throughout the different levels of the court system. In addition, one might claim that the most serious problem, endangering the very idea of constitutionalism, relates to the ordinary judiciary’s respect for and observance of constitutional court decisions. In its discourse with the ordinary courts, the Czech Constitutional Court has fashioned a new conception of precedent for the ordinary judiciary. On the one hand, the Constitutional Court has emphasized that a judge is not bound by the case law of the Supreme Court and is entitled to deviate there from where she finds good reason to do so. Confirming the dangers of formulating a formal doctrine of precedent for ordinary Continental judges, one extreme of the Central European judicial practice has judges blindly applying any rule they find in the case law of the Supreme Court, without taking into account its context and sense. In this way, judge-made rules are often applied literally, even in cases where the application seems to be unreasonable and following the judge-made rule is not desirable. Replying to the arguments of an ordinary judge that the decision is correct because the ordinary judge is bound by case law, 121

The order of the Second Senate of 14 October 2004, BVerfG, 2 BvR 1481/04 of 14 October 2004, paras. No.(1-72); available (in English) at (quoted according to this English translation). See M. Hartwig, “Much Ado about Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights”, 6 German L. J. (May 2005) No.5 available at .

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the Czech Constitutional Court has emphasized that the ordinary courts must assess the validity of the established case law by taking into account societal and legal development.122 Unity of high-court jurisprudence is yet another very important issue. Common-Law supreme courts enjoy the privilege of selecting which cases they will review (e.g., by writ of certiorari) and typically choose to hear only a few dozen of the most important cases per year, most of them setting new precedents. On the other hand, Continental supreme courts—which are not equipped with the power of selection—are obliged each year to decide thousands of cases, obviously not en banc but, rather, in its numerous senates.123 It is thus not surprising that conflicting case law, within the various senates of a supreme court, represents a major problem. Central European laws have emphasized the unifying character of the supreme courts’ case law, exhibiting the clear influence of the old German model.124 Supreme Court senates, if they wish to deviate from a previous decision of another senate, must refer the question to be decided by the Grand Senate of the Supreme Court.125 When the Supreme Court, sitting in the grand senate, resolved a conflict among the senates, in its opinion it simply chose the reasoning of one of conflicting senates and justified its choice merely by repeating word-for-word that senate’s reasoning—without giving any further reasoning of its own and without attempting to explain why that opinion is superior to another one. However, the senates of the Czech Supreme Court continue to issue decisions based on conflicting 122

Decision IV. ÚS 200/96, 6 ÚS (1996), 387. Similarly, the German Federal Constitutional Court, BVerfGE 18, 224 (240) and BVerfGE 84, 212 (227).

123

Cf. generally, M. Bobek, “Quantity or Quality? Reassessing the Role of Supreme Jurisdictions in Central Europe”, 57 Am. J. Comp. L. (2009), 33-66.

124

See R. Alexy and R. Dreier, “Precedent in the Federal Republic of Germany”, in: MacCormick and Summers, op.cit. note 37, 17. A similar rule exists in many other Continental countries. The House of Lords, if it is contemplating overruling its own precedent, also decides in a composition broader than that for an ordinary decision; see Z. Bankowski, D.N. MacCormick, and G. Marshall, “Precedent in the United Kingdom”, in: MacCormick and Summers, op.cit. note 37, 343. Cf. the en banc practice of US Federal Courts of Appeals which usually decide in three-judge panels, but one reason to transfer such a case to a larger composition (en banc, which is like a grand senate, but does not necessarily make up the entire court) is a desire to depart from case law established in that particular circuit. For a general overview of this practice, see, e.g., D. Ginsburg and D. Falk, “The D.C. Circuit Review, September 1989 – August 1990: The Court En Banc: 1981-1990”, 59 Geo. Wash. L. Rev. (1991), 1008.

125

For the Hungarian rule, cf. Pokol, op.cit. note 67, 86; for the Polish rule, see Art.62 of the Polish Act on the Supreme Court, op.cit. note 105; for the Czech rule, Art.20 of the Act on the Judiciary, op.cit. note 105; and for the Slovak rule, Art.21 of the Act on the Judiciary, op.cit. note 105.

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legal opinions; they often depart from case law without proper explaining or even indicating that deviation.126 The Czech Constitutional Court has dealt with that problem in several of its decisions. In 1998, the Constitutional Court criticized the Supreme Court for an unprincipled and unpredictable change of its case law and proclaimed that such deviation from its case law was unconstitutional. The stakes were high in that case: the issue was whether the fact that a victorious senatorial candidate had appeared on TV during the time when the elections were being held (which was prohibited by law) might result in her election being invalidated. The Supreme Court decided that it clearly does, despite the opposite ruling issued by another senate of that Court a few months earlier. The Constitutional Court replied in this way: “[I]n considering the predictability of a law (its consequences), we cannot restrict ourselves only to its grammatical text. It is judicial decision-making which—although it does not have the classical precedential character—interprets the law, or completes it, and its relative constancy guarantees legal certainty and also ensures general confidence in the law. This applies particularly to the Supreme Court […], which is the supreme judicial body in the general judiciary. [...] Naturally, this does not deny that judicial case law can develop and change in view of a number of aspects, particularly with regard to changes in social conditions. However, this changes nothing about the fact that in the adjudicated matter the appealed decision of the Supreme Court […] principally diverged from the fundamental legal opinion which the same court expressed a mere five months before, and with which it gave content to §16 para. 2 and 5 of the Election Act. That cannot be overlooked in this situation.”127

As a result of the Supreme Court having overruled its own case law without any reason or explanation, the Constitutional Court reversed the Supreme Court’s decision.128 Similar reasoning applies to obedience of the lower courts to the jurisprudence of their high courts. Post-Communist lower courts, in principle, do respect precedents of their high courts. However, the respect they show is rather haphazard; in practice, ‘silent’ (and accidental) departures from high-court jurisprudence are quite frequent. For this reason, the Constitutional Court also has intervened in this field. Influenced by German doctrine, the Court had proclaimed in the late 1990s that ordinary court judgments are arbitrary and, therefore, unconstitutional, to the 126

In total, there were 27 decisions of the Grand Senate during the first five years of the existence of this institution in the Czech Republic (2001-2005). See the statistics at the website of the Czech Supreme Court (in Czech), available at the Supreme Court’s website (visited on 10 January 2006).

127

Lastovecká case, I, ÚS 526/98, 13 ÚS (1998), 203 (translated in: ).

128

For a similar Slovenian ruling, see decision Up-297/96 of 15 June 2000 (translated in: ): “The right to the equal protection of rights (Art.22 of the Constitution) of the complainant was violated when the Supreme Court in his case applied Art.148 of the Housing Act differently from the case law established in particular by the decisions of that court, and did not explain or substantiate such different application in any manner.”

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extent that the judge decides contrary to the ‘established’ case law of the Supreme Court—unless she rationally explains why she disregarded the applicable jurisprudence.129 The effects of the decision are far reaching. A precedent, although not binding, has a force of its own, and judges must give strong arguments for declining to follow it. The ‘discursive’ authority of precedent—as outlined by the Czech Constitutional Court—means that it is the duty of all judges to consider higher-court precedents, and not just a matter of random judicial choice. It is clear that the importance of precedent is growing in the region. Although the use of case law is still rather haphazard and lacks any internal logic, the first signs are clearly visible of an erosion of the socialist concept of law limited only to the texts of statutes.130 It is clear from a comparison of the Communist era with the first post-Communist decade that citation to precedent in judicial opinions is much more widespread at the present time.131 The difference may be accounted for by the fact that there has been a much higher number of more difficult cases since 1989 than there was during the Communist era, which inevitably presses the judges to rely more on previous high-court jurisprudence. In doing so, however, they are handicapped by the fact that legal academia usually does not provide a sufficient impetus in reporting and commenting on case law as has become the tradition in Western European legal systems.132

129

Decision III. ÚS 470/97, 16 ÚS (1999), 203. Interestingly enough, the Slovenian Constitutional Court—one of the few other post-Communist constitutional courts which has jurisdiction to decide constitutional complaints against judicial decisions—has espoused an almost identical opinion in its discourse with the Slovenian judiciary. Cf. M. Novak, “The Promising Gift of Precedents: Changes in Culture and Techniques of Judicial Decision-Making in Slovenia”, in: J. Přibáň, P. Roberts, and J. Young (eds.), Systems of Justice in Transition. Central European Experiences since 1989 (Ashgate Publishing, Dartmouth, UK, 2003), 94, 104-105.

130

In Slovakia, it seems that the lack of concept of persuasive force of law permeates even the very use of precedents. Among 120 statements and decisions of Slovak courts (primarily, the Supreme Court of Slovakia) published in the official reporter (Zbierka stanovísk) for 2001, I only have found five citations to precedent, four of which were contained in a single judgment (see 102/2001). All of them were citations of the Slovak Supreme Court’s own precedents; one decision cites the “established case law of the Constitutional Court”, without any quotation (see decision No.99/2001 in Zbierka stanovísk).

131

Cf. for Hungary, Pokol, op.cit. note 67, 72-74, 80.

132

On this cf. the text at Chapter 3, Part III.4.6. supra.

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III. Textual Positivism: Public Critique and the Position of Legal Science Unlike many other post-Communist countries, methodological questions of judicial reasoning has become a topic of public discourse in the Czech Republic. This seems to be a direct influence of the sometimes very dramatic and publicly-aired controversies between the Czech Constitutional Court and the ordinary judiciary. The problematic situation and the worrisome concept of limited law were openly and clearly articulated by former Czech President Václav Havel in March 2002, on the occasion of the most controversial appointment he ever made to the Constitutional Court Justice, that of Eliska Wagnerová.133 In reaction to her nomination, the controversy between formalism as embraced by textual positivism, on the one hand, and the new conception of law, on the other, spread from the limited doctrinal sphere into a wider public arena. Formalists in academia and politics—who themselves emphasized their adherence to what, in their view, was ‘positivism’—publicly criticized Wagnerová for being too unrestrained by the text of law and for being too ‘pro-natural law’. Because of this pressure, her approval by the Senate was thrown into doubt. President Havel chose to attend the confirmation hearing134 and defend his own conception of law, which he did in his remarks to the Senate in which he harshly condemned the conception of law prevailing in the post-Communist period: “It is mechanical, I would like to say senseless, application of law, which almost becomes an object of some cult. […] It is an approach toward the application of law which does not permit any control by ordinary common sense; nor does it allow for any consideration of the law’s sense, meaning or circumstances, any consideration of the probable legislative intent or even the core of law’s value in a hard case. Although the law is a human product, it attains almost metaphysical authority.”135

Formalism and the gap between the needs of society and the inability of case law to respond to these needs have been repeatedly harshly criticized in the Czech press. Quoting the Chief Justice of the Czech Supreme Court, a daily newspaper noted that Czech judges “lack interpretative 133

The Czech Republic follows the American model for selecting Justices of the Constitutional Court, with the President nominating them and the Senate (the upper chamber of the Czech Parliament) approving them. See the Constitution of the Czech Republic, Art.84 (2).

134

So far, this has been the only time that a Czech President personally attended the confirmation hearing of a Constitutional Court Justice.

135

Prague, the Senate of the Parliament of the Czech Republic, 14 March 2002, stenographic record (in Czech), available at .

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courage”.136 Astonishingly, that is the very same conclusion reached by West German judges about their East German counterparts.137 The Chief Justice concluded that it is necessary to change the judicial philosophy of law and put her hope, as has become frequent in the region, on the positive influence of the EU following accession: “This is a matter of legal culture. Education in it should start at university during the training of new lawyers. I believe that when we join the EU, a great pressure will start. [The EU] will not allow formalism and positivism to continue to exist in the Czech judiciary.”138

After the terms of most of the constitutional Justices appointed by former Czech President Havel had come to an end in 2003, what was to become a protracted constitutional crisis began when the new President, Václav Klaus, became responsible for appointments to the Constitutional Court. A serious controversy between the new President and the Senate resulted in the latter rejecting several of the President’s nomination, as a consequence of which five of the fifteen seats on the Court remained vacant in Spring 2004, more than a year after Klaus had entered office.139 Although many aspects of this crisis were political, questions of the proper ideology of law application also emerged. In this aspect, one might again spot the clash between ideals of textual positivism and a form of legal realism. According to the former, the best judge is a person highly specialized in one concrete legal field; for the latter, other factors are decisive, including value background, openness to new trends and ideas etc., and not necessarily solid expertise in one particular branch of law. For instance, before rejection of one of the unsuccessful candidates, the Chair of Constitutional Committee of the Senate refuted the ideals of textual positivism in the following way: “Recently I came across an article on the nature of judicial decision-making. The author of that article refers to sociological investigations and claims that the most important part of a judge’s decision-making is not his expertise, i.e., knowledge of procedural and substantive law, but his personality, values, experience, intuition, and view of the world. In my opinion the Senate must respect this in its approval of candidates nominated by the President. The President should not wonder […] if we 136

(Anonymous), “Cihlářová, Kadeřávková, Vizitka české justice – 400 000 otevřených případů” [Calling Card of the Czech Judiciary – 400,000 Unfinished Cases], Právo (30 December 2002), 3.

137

I. S. Markovits, “Children of a Lesser God: GDR Lawyers in Post-Socialist Germany”, 94 Mich.L.Rev. (1996), 2270, 2302. See Chapter 3 (the text accompanying note 237), supra.

138

Op.cit. note 136 (quoting Chief Justice Iva Brožová).

139

In English, see Z. Kühn and J. Kysela, “Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic”, 2 European Constitutional Law Review (2006), 183-208.

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refuse a narrowly profiled expert of one particular legal field, taking into account that the Constitutional Court must judge the whole legal order, or if we veto a candidate whose reactions in cases under political pressure […] would be questionable, or whom, considering his biography, we think could not stand up to such political pressure.”140

Based on sociological polls from the beginning of the 2000s, it seems that generally people of the new EU member countries view the implementation and application of their law more critically than their Western European counterparts.141 However, the new anti-formalist constitutional courts in Central Europe seem to enjoy considerable public support and acceptance, usually higher than that of any other state institution.142 In contrast, the majority of Czech legal academia—and, of course, the ordinary judiciary—did not join in the general anti-formalist critique. Constitutional Court Justices throughout the region speak about the paradox of the acceptance of the new activist constitutional justice by society as a whole and its rejection by the conservative academia and ordinary judges.143 In 2001, prior to her appointment to the Constitutional Court, 140

A speech of Senator Jiří Stodůlka, Prague, the Senate of the Parliament of the Czech Republic, 8 April 2004, stenographic record (in Czech), available at . I have not been able to identify the article to which the then-Senator Stodůlka was referring.

141

See European Commission, “European Citizens and Freedom, Security and Justice. Qualitative Survey of Citizens of the 15 Member States and the 13 Applicant Countries”, (March 2003), 33:“The deficiencies in or insufficient adaptation of the laws themselves are particularly underlined by the citizens of the candidate countries.” Available at .

142

In 1995 in Hungary, 58% of the public supported the Constitutional Court; for the Parliament it was 36%, and for the Government 35%. In Slovakia until 1999, public confidence in the Constitutional Court was around 60% (January 1999: 62%, June 1998: 68%, January 1997: 66%, February 1996: 61%), while confidence in the president stood at about 50%, in the Parliament between 42% and 57% and in the government between 36% and 57%. In the Czech Republic, public confidence in the Constitutional Court was 69% in June 2004 and 74% in June 2005. See W. Sadurski, “Constitutional Justice, East and West: Introduction”, in: Sadurski, op.cit. note 21, 8 (data for Hungary); D. Malová, “The Role and Experience of the Slovakian Constitutional Court”, ibid., 349-372, 371 (data for Slovakia); and (data for the Czech Republic).

143

This was first noted by the former Slovenian Constitutional Justice and current Justice of the European Court of Human Rights, Boštjan Zupanžič: “Od souboje ke smlouvě, aneb co vlastně ustavuje ústava?” [From Combat toward Contract, or What is Established by the Constitution?], 137 Právník (1998), 476; in the Czech Republic, see P. Holländer, “The Role of the Constitutional Court for the Application of the Constitution in Case Decisions of Ordinary Courts”, 86 Archiv für Rechts- und Sozialphilosophie (2000), 547; and in Hungary, see Sólyom, op.cit. note 12. Cf. Přibáň, op.cit. note 21, 373-394, especially: 380ff.

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Deputy Chief Justice Wagnerová had noted her feeling that there were only fifteen people at the Constitutional Court fighting the remainder of the professional legal community.144 The general trend of legal education is rather to oppose the constitutional court’s decision-making. Many scholars—who look to the pre-Communist traditions as a model—have repeatedly rejected a more substantive and less textually-oriented approach. Legal academia and many politicians support the old dogmas of the inferior role of the judiciary and of parliamentary sovereignty.145 Although this attitude has slowly been changing, during the first term of the Czech Constitutional Court (1993-2003), the prevailing attitude of educators at Czech law faculties was oriented against the Constitutional Court. The Constitutional Court is often considered a symbol of poor reasoning, as it sometimes openly employs value reasoning instead of textual arguments. In contrast to the latter, in the culture of textual positivism, the former is not considered ‘the law’. The values of formalism and textual positivism continue to be firmly internalized by post-Communist lawyers. The fear expressed by many formalist academics relates to the alleged unsuitability of applying ‘natural law’.146 This reflects post-Communist lawyers’ inability to understand that there are not only two alternatives: either to stick rigidly to the letter of the law, adhere to textual positivism and rigid formalism, or to overstep, with the most extreme adherents of natural law, the bounds of the positive legal system doomed forever to seek genuine and unchallengeable justice. True, some constitutional court decisions elicit doctrinal critique because of their overly-activist notions. In addition, some Czech Constitutional Court Justices have declared their adherence to the philosophy of natural law, either publicly in the mass media or in their judicial decisions,147 144

“Rozhovory o právu” [Dialogues about Law], 3 (9) Soudce (2001), 2, at 5. Similarly, I. Pelikánová, “Nad posláním české právní vědy” [About the Mission of Czech Legal Science], 8 Právní rozhledy (2000), 187, criticizing legal academia for slavishly following old dogmas and unquestioningly defending these ideas against a few ‘extravagant’ scholars and the Constitutional Court.

145

See, on this, an analysis (in English): Přibáň, op.cit. note 21, 388. See, also, Mark Gillis, “Judicial or Parliamentary Supremacy in the Czech Republic: The Czech Constitutional Court’s Judgment on the Act on Courts and Judges”, 10 J. E. Eur. L. (2003), 1.

146

Přibáň, op.cit. note 21.

147

See the following decision of the Constitutional Court of 5 June 1996: “Moreover, to cite a deficiency of express legal provisions as the reason for denying a person his right to the assistance of counsel corresponds to a purely positivistic approach to the law and does not match the requirements of a law-based state, which are

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which—considering the deep positivist tradition in the region—is the best way to discredit their reasoning. Moreover, such statements contribute to a confusion in terminology; what is at stake is not the controversy between the philosophy of classical positivism and the philosophy of classical natural law but, rather, the conflict between a dogmatic methodology which cannot function effectively in a complex world and a pragmatic methodology which is able to face the new challenges of a post-Communist society. It is not necessary to deny positivism; the version of positivism prevailing in the West in the last decades (sometimes called ‘inclusive positivism’148) is broad enough to encompass standards external to statutes. We must be aware that historical reasons play a substantial role in academic discussions on formalism. When post-Communist countries have recourse to their Continental past, it might have both positive and negative effect. On the one hand, the roots of those systems are highly valuable. Gianmaria Ajani has noticed that “during the last few years postSocialist legislators have turned to pre-Socialist sources of law that were greatly influenced by classical continental models”.149 On the other hand, this trend could, at least in some fields, be a throwback to the obsolete theories of old Continental positivism (e.g., exaggerated emphasis on the rigid separation of powers or a conception of strict opposition between the Continental and Common-Law worlds). Whereas it is generally considered in the post-Communist region that these theories are without a doubt correct, in the West they are either in the process of being deconstructed or reconstructed, e.g., conceptions of precedent and its binding force.150 Further, some of those conceptions have been radically modified in the West, for instance the new expansive conception of the ‘rule of law’ or the ‘Rechtstaat’. characteristic of the natural law bent […].” Decision No.II. ÚS 98/95; a translation by Mark Gillis is available at . 148

W.J. Waluchow, Inclusive Legal Positivism (Oxford University Press, Oxford, 1994). If we consider the views of major positivists—such as the Czech émigré Ota Weinberger (see Weinberger, Law, Institution, and Legal Politics: Fundamental Problems of Legal Theory and Social Philosophy (Kluwer Academic Publishers, Dordrecht, The Netherlands, 1991), 109-110)—we can conclude that their ideas are easily compatible with the new positivism and new constitutionalism.

149

G. Ajani, “By Chance and Prestige: Legal Transplants in Russia and Eastern Europe”, 43 Am. J. Comp. L. (1995), 93, 95.

150

The traditional distinction between judicial activity in the Continental system and Common Law can be described simply (albeit inaccurately): in the latter system, judges are strictly bound by precedent and, in the former, they are entirely free from precedent. Unlike Western Europe, the distinction is taken very seriously in the still legalistic countries of Central and Eastern Europe.

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The adherents of legal formalism have the tendency to claim its continuity with pre-Communist positivist legal culture. According to many scholars and judges, therefore, denouncing formalism is tantamount to serious heresy: disapproval of the old tradition of Central European legal culture. The alleged continuity of the domestic tradition is, therefore, the most common defense of the Central European formalists. However, I have shown that, in the course of the last five decades, European culture has been undergoing a difficult process of substantial modification, which at least partially has led the legal systems from an emphasis on the blackletter rules to a more substantive and flexible approach, a modification that can be described as ‘the revolt against formalism’.151 Hence, the old Central European ‘folklores’152 of the Continental culture—which emphasize the ideals of nineteenth-century positivism and the laissez faire state, describing judges as interpreters of big codes—could have a highly destructive potential for the post-Communist formalist systems, which are not laissez faire systems but, rather, complex regulatory societies; nor, in contrast to the conceptions of positivists and the situation that prevailed in the nineteenth century, are their legal systems based primarily upon a few, great all-encompassing codes.

IV. The Issue of the Binding Force of Decisions of Constitutional Courts Damaška’s conception of the ideal of coordination is based on the horizontal distribution of authority. Under this conception, in order for a high court to ensure that the law is properly followed by other courts, it should not be necessary for high courts to review thousands of cases a year and issue binding orders to lower courts. Rather, the high court should admit for its review only a low number of appeals and only those containing novel and important issues. The constitutional court is not like a typical Continental high court; it is the most important judicial body, in principle concerning itself strictly with constitutional issues. That is why it should take decisions rather as an exception, not as a rule. It should not spend its time repeating the same opinions, by over and over again quashing ordinary court decisions for the same reason. This means that, in order for the constitutional court to properly carry out its role, it is imperative that respect for the rules proclaimed by the constitutional court depend not so much on hierarchical ordering and on it issuance of binding rulings; rather, that it should be a matter of self-discipline on 151

M. Cappelletti, The Judicial Process in Comparative Perspective (Clarendon Press, Oxford, 1989), 11.

152

Merryman, op.cit. note 37.

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the part of the ordinary judges, as well as respect for the constitutional court’s status and authority.153 The very nature of a constitutional tribunal’s activity tells us that this can only be effective if ordinary courts generally respect the constitutional court’s rulings, so that—rather than the constitutional court being obliged to expend its limited judicial resources on repeatedly deciding the same issue (which will inevitably be the case if ordinary courts fail to respect its decisions)—each new holding would concern a novel and significant issue. Even if a constitutional tribunal is not hampered in its work by being denied the competence to intervene into adjudication by ordinary courts, they clearly do not have the actual capacity to police all conceivable constitutional defects contained in ordinary court decisions. After all, constitutional courts do not have dozens of judges sitting in numerous senates, as is the custom for supreme courts in European judicial systems; they have, at most, fifteen (the Czech Republic) or sixteen (Germany) justices, who cannot possibly process the same number of cases as supreme courts do. Therefore, although, as a formal matter Continental constitutional judiciaries have not been endowed with a certiorari-like power, in fact various substitutes have been developed to serve the same needs.154 This might also explain why, in many Western European countries, the formally binding force of constitutional court decisions is now more or less recognized155 and why the issue of their binding force emerged as soon as constitutional courts were established in the Central European area. The very conception of the new constitutional judiciary presupposes that constitutional precedents have some binding force in relation to the ordinary judiciary. That is the reason the Czech Constitutional Court describes this issue as a “conditio sine qua non” of its existence.156 In Poland and Hungary—where the constitutional courts cannot review the constitutionality of lower-court decisions—this problem is even more striking, especially in cases where the constitutional court does not annul a law but attributes to that law a constitutionally admissible meaning 153

Damaška, op.cit. note 96, 24ff.

154

On this aspect in Germany, see W. Heun, “Access to the German Federal Constitutional Court”, in: Rogowski and Gawron, op.cit. note 40, 125-156.

155

Cf. T. Lundmark, “Stare decisis von dem Bundesverfassungsgericht”, 28 Rechtstheorie (1997), 315 (elaborating the issue on a comparative scale); Alexy and Dreier, op.cit. note 124, 27; A.R. Miguel and F.J. Laporta, “Precedent in Spain”, MacCormick and Summers, op.cit. note 37, 272; and Dawson, op.cit. note 74, 490-492 (describing disputes in Germany in the 1950s).

156

Decision III. ÚS 425/97, 10 ÚS (1998), 285; a translation of this decision by Mark Gillis is available at .

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and, in the same decisions, excludes the constitutional permissibility of other meanings.157 Considering this perspective, the problem of the binding force and respect for the precedents of Constitutional Courts is—throughout the entire post-Communist region—one of the crucial issues in implementing the New Constitutionalism, including doctrines on the horizontal effect of basic rights.158 Following the old Continental clichés, academics and ordinary judges—despite express provisions of their constitutions to the contrary159— maintain that constitutional court decisions do not operate as precedents and are not binding. In the former Czechoslovakia, the fact that rulings made by the constitutional courts are generally unpopular with the ordinary judiciary—together with the thesis that constitutional court rulings lack binding nature—serve, for all intents and purposes, to ensure only sporadic respect for those rulings, which results in the situation that some constitutional court doctrines are applied in a purely arbitrary fashion. The arguments made against the binding nature of constitutional decisions seem to be similar throughout the region. First, binding force is usually perceived in a rather unconditional sense, analogous to the binding force of statutes. Neither scholars nor ordinary court judges seem to realize that the binding force of precedent is a much more nuanced 157

László Sólyom, a former Chief Justice of the Hungarian Constitutional Court, has noted the problem of the binding force of constitutional precedent in Hungary, a country where, in principle, only abstract constitutional review of norms is possible. Sólyom, op.cit. note 12, 21ff. Similarly for the Polish situation, a former Justice of the Polish Constitutional Tribunal, L. Garlicki, “The Experience of the Polish Constitutional Court”, in: Sadurski, op.cit. note 21, 265-282, at 282.

158

Z. Kühn, “Making Constitutionalism Horizontal: Three Different Central European Strategies”, in: A. Sajó and R. Uitz (eds.), The Constitution in Private Relations: Expanding Constitutionalism (Eleven International Publishing, Utrecht, 2005), 217-240. Regarding similar problems in Romania, see R. Weber, “The Romanian Constitutional Court: In Search of Its Own Identity”, in: Sadurski, op.cit. note 21, 283-308, 298-303.

159

The Czech Constitution in Art.89 para. 2 proclaims: “Enforceable decisions of the Constitutional Court are binding on all authorities and persons.” Art.190 para. 1 of the Polish Constitution proclaims that judgments of the Constitutional Tribunal shall be “universally binding and shall be final”. Similarly Art.27 para. 2 of the Hungarian Act No.XXXII of 1989, on the Constitutional Court: “The decisions of the Constitutional Court are binding on everybody.” Under a 2001 amendment to the Slovak Civil Procedural Code, a new Art.135 para. 1 expressly proclaims that an ordinary court is bound by decisions of the Constitutional Court which holds a law to be contrary to the Constitution, an act of parliament or to an international treaty; furthermore, and more importantly, an ordinary court is also bound by decisions of the Constitutional Court and the European Court of Human Rights which relate to basic rights and freedoms.

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and more sophisticated process and that it is conditioned by important exceptions, such as distinguishing, overruling, etc. The descriptions of a system of binding precedent provided by domestic scholars are calculated to horrifying into capitulation anyone disposed to argue in favor of precedent. “If we admit that constitutional court precedent is binding”, write two Czech scholars “it would mean that there would be one binding explanation of history, because the Court often goes into historical excursus.”160 This inability to comprehend the nature and operation of judicial precedent supports Damaška’s warning that—under the weight of the old-fashioned Continental dichotomy of binding versus non-binding—a system of precedent would function in a much more rigid way that it does in the Common-Law system. In addition, the significant difference between the binding nature of precedent and the res judicata consequence of a judicial decision is often misunderstood. As the argument goes in Poland, the Czech Republic and elsewhere, only the statement of judgment is binding in a Continental system; anything which appears to be in justification of the judgment lacks any binding character whatsoever.161 Last but not least, the example provided by the Communist practice of binding interpretative decisions made by the supreme courts in abstracto—divorced from any specific controversy—is used as a warning against according binding force to judicial decisions because it entails a breach of judicial independence.162 160

V. Pavlíček and J. Hřebejk, Ústava a ústavní řád České republiky [The Constitution and the Constitutional Order of the Czech Republic] (Linde, Praha, 1998), 38. Naturally, this argument is fallacious as it fails to take into account the fact that—according to the doctrine of precedent that prevails in Common-Law systems—only a proposition of law qualifies as a ratio decidendi, so that any historical excursus in a judicial decision (regardless of the merits of including such discussions therein) cannot function as binding.

161

Procházka, op.cit. note 15, 110ff. This formalistic argument has been overcome by the Polish Constitutional Tribunal simply: what was considered to be binding was incorporated into the statement of judgment. L. Garlicki, “Trybunał Konstytucyjny a sądownictwo” [The Constitutional Tribunal and the Judiciary], 8 (1) Przegląd Sądowy (1998), 3-21. It was not, however, of much help to the Tribunal, as critics of the binding-force theory argued that this part should not be included in the judgment. See A. Józefowicz, “Orzeczenia interpretacyjne Trybunału Konstytucyjnego” [Interpretative Decisions of the Constitutional Tribunal], 54 (11) Państwo i Prawo (1999), 28. This step also has been taken in the Czech Republic: the Constitutional Court included its “interpretation consistent with the constitution” into the judgment. See the decision Pl. ÚS 41/02 published in: Sb. (2004) No.98.

162

W. Sanetra, “W sprawie związania sądów powszechnie obowiązującą wykładnią ustaw” [On the Impact on the Ordinary Courts of the Generally Binding Interpreta-

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IV.1. Case Study: ‘The War of Courts’ in Poland and the Czech Republic During the 1990s in Poland, a controversy erupted over the binding character of the Constitutional Tribunal’s decisions proclaiming generally binding interpretations of statutes in abstracto (outside the individual case under review), a power quite exceptional for the Constitutional Court, which power existed in Poland since the early post-Communist period until the enactment of the new Constitution in 1997.163 The animosity between the Polish Supreme Court and the Constitutional Tribunal spilled into public view with a series of cases in which the former openly defied the latter. The Supreme Court had denied the binding character of the Constitutional Tribunal’s decisions and adjudicated contrary to the Constitutional Tribunal’s ruling.164 Characteristically for the post-Communist ideology of law—as its main argument against the Constitutional Tribunal’s assertion of power—the Supreme Court insisted upon the exclusivity of statutes as the only binding source for the ordinary judiciary.165 In a certain respect, the arguments advanced by the Supreme Court were legitimate because this quite unique institution effectively allowed the constitutional judiciary to intrude into an area of the ordinary judiciary’s decision-making.166 The Constitutional Tribunal responded by reiterating the binding nature of these rulings. According to the Tribunal, this binding nature takes precetion of Statutes], 6 (9) Przegląd Sądowy (1996), 3-18, 10. A contrary opinion has been expressed by D. Dudek, “Sądy wobec wykładni ustaw ustalanej przez Trybunał Konstytucyjny” [The Courts on Statutory Interpretation of the Constitutional Tribunal], 7 (2) Przegląd Sądowy (1997), 70-90. As I already have noted, this practice survived the fall of Central European Communist regimes; however, with the exception of Hungary, these interpretative statements ceased to have binding force. 163

Art.33a para. 1 of the “Small” Constitution (the provisional constitution in force before enactment of the present Constitution in 1997).

164

Decision of the Polish Supreme Court of 26 May 1995, I PZP 13/95, OSN ZU (1995) No.23 item 286 (the case of the judicial remedy of members of the police forces). Cf. the case note of P. Tuleja, “Glosa do uchwały z dnia 26 maja 1995 r.” [Note on the Decision of 26 May 1995], 7 (2) Przegląd Sądowy (1997), 91.

165

For details of this controversy, see A. Stelmachowski, “Sąd Najwyższy kontra Trybunal Konstytucyjny czyli spór o wykładnię” [The Supreme Court versus the Constitutional Tribunal: The Controversy about Interpretation], 6 (2) Przegląd Sądowy (1996), 3-12, who argues that the ordinary judiciary is bound by the decisions of the Constitutional Tribunal: although it is true, according to Stelmachowski, that judges do not make ‘statutes’, they do make law. Cf. the decision W. 12/95, I Orzecznictwo Trybunalu Konstytucyjnego, Zbiór Urzędowy [Collection of Decisions of the Constitutional Tribunal. Official Collection. Hereinafter “OTK ZU”] (1996), 299-314, at 305-307. Cf. (in English), Procházka, op.cit. note 15, 110ff.

166

Garlicki, op.cit. note 16, 6-9.

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dence over the constitutional principle according to which the ordinary courts are subject only to statutes.167 After this prolonged crisis, the power of the Tribunal to make binding interpretation of statutes was abolished by the new 1997 Constitution. The new Constitution defined the Constitutional Tribunal’s competences in such a way so as to assure that any clashes between the courts of ordinary and constitutional jurisdiction would be eliminated168 although, as I will show below, the result has in fact been just the opposite. As the Czech Constitutional Court adjudicates the constitutionality of ordinary court decisions, interactions between it and the ordinary Czech judiciary have been much more frequent than for their respective counterparts in Poland. Accordingly, in the Czech Republic, it was inevitable that there would be a conflict over the binding force of constitutional precedents. In the late 1990s, the issue of the binding force of the Constitutional Court’s precedents gave rise to a major crisis of the Czech legal order. The Czech Constitutional Court had made a systematic attempt at transplanting into the national legal order major German constitutional doctrines, including the doctrines of the ‘radiation’ of constitutional law throughout the legal system (‘Ausstrahlungswirkung’),169 which characterizes mainstream German tendencies in respect of the third-party effect of basic rights.170 According to this doctrine: “As far as the position of the judge is concerned, radiating effect establishes a duty to take account of the influence of constitutional rights on private law norms when interpreting them.”171 In the 1990s, the German Federal Constitutional Court expanded this doctrine into the area of the law of contracts, which marked yet another step in the constitutionalization of private law.172 The radiation of basic rights throughout the legal system means that many cases—although governed prima facie by ‘simple’, i.e., non167

Art.62 of the Small Constitution.

168

See M. Wyrzykowski, “La Réforme du Tribunal Constitutionnel Polonais”, Polish Contemporary Law (1997), 85, at 87.

169

Cf. e.g., BVerfGE 7, 198 (206), “Lüth” and the decision of the Czech Constitutional Court: III. ÚS 139/98, 12 ÚS (1998), 97.

170

See (in English) Alexy, op.cit. note 33, 350ff. (at 350, explaining the “substantive fundamentality” of the constitution in this way: “constitutional rights and constitutional rights norms are substantively fundamental, because they incorporate decisions about the basic normative structure of state and society”).

171

Ibid., 355-356.

172

E.g., BVerfGE 89, 214. Cf. P. Zumbansen, “The Law of Contracts”, in: M. Reimann and R. Zimmerman (eds.), The Oxford Handbook of Comparative Law (Oxford University Press, Oxford, 2006).

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constitutional, law only—have constitutional dimensions; thus, in order to decide them properly, the provisions of ‘simple law’ must be interpreted and applied in a manner that takes into account and balances conflicting constitutional rights.173 For instance, when applying provisions of the Civil Code concerning defamation and slander, judges must take into account the freedom of speech and counterbalance it against these rights of personal honor. To ignore this constitutional dimension of the application of ordinary law, i.e., the conflict of basic rights in horizontal relations, would lead to a one-sided jurisprudence, completely undermining free speech by private means. Facing an apparent inclination by the ordinary courts to proceed in precisely this way,174 we might well think of it as yet another doctrinal remnant of the Communist era. While Communist case law dealt extensively with defamation and slander—and accorded even private individuals a certain area of freedom from outside intrusion—it almost completely disregarded the freedoms of speech and the press. Realizing the necessity of judicial balancing of conflicting rights, the Czech Constitutional Court has directed ordinary courts that: “one of the functions of the Constitution, and especially of the constitutional system of basic rights and freedoms, is its ‘radiation’ throughout the legal order. The sense of the Constitution rests not only in ordering basic rights and freedoms and providing institutional mechanisms and making legitimate state decisions, not only in the direct effect of the Constitution and its position as a source of law, but also in the duty of state and public bodies to interpret and apply law considering the protection of basic rights and freedoms. In this case, it means the duty of the law courts to interpret particular provisions of the civil procedure code from the viewpoint of the sense and purpose of constitutionally guaranteed basic rights and freedoms.”175

However, a deeply engrained ideology of judicial decision-making is very difficult to uproot. For that reason, it is not surprising that the Central 173

See, e.g., BVerfGE 18, 85, passim (1964) or BVerfGE 80, 137, at 155 (1989), referring to ordinary non-constitutional law as ‘einfaches Recht’, literally translated as ‘simple’ law. The Czech Constitutional Court took this concept from its German counterpart. Cf. e.g., decision III. ÚS 224/98, 15 ÚS (1999), 17 (using the term ‘jednoduché právo’, ‘ordinary law’). The concept of ordinary law rests on the differences between constitutional and non-constitutional law; the former implies balancing and difficult evaluative reasoning on the basis of constitutional values, which is not the case of the latter (though balancing might be realized also in the latter through the application of constitutional principles and rights based on the principle of radiation).

174

Cf. as a typical example, decisions of the Slovak ordinary courts as analyzed and rejected by the European Court of Human Rights in Feldek v. Slovakia - 29032/95, ECHR (2001), 463 (12 July 2001). Similarly, for Hungary, Z. Fleck, “Judicial Independence and Its Environment in Hungary”, in J. Přibán, P. Roberts, and J. Young (eds.), Systems of Justice in Transition. Central European Experiences since 1989 (Ashgate Publishing, Dartmouth, UK, 2003), 121ff., at 135.

175

Decision III. ÚS 139/98, 12 ÚS (1998), 97.

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European ordinary judiciary is not open to the doctrine of the third-party effect of basic rights. The Czech Supreme Court has openly revolted against the Constitutional Court’s decisions, claiming that the latter’s opinion is not binding on the Supreme Court because the Continental legal system is not based on the ‘system of precedents’. The conflict soon spread across a number of substantive issues, where the ordinary judiciary found constitutional rulings to be ‘incorrect’ as they were not sufficiently textually based. The ordinary judiciary was supported and praised by some Czech legal scholars who remain deeply suspicious of the Constitutional Court and its new philosophy. In this dispute, as elsewhere in the region, a label passed for an argument: an alleged fundamental distinction between Common Law and Continental Law. “Precedent is natural in England”, one prominent scholar opposed to the Constitutional Court wrote; “in our system, however, it is not natural”.176 Others emphasized that it is solely up to the decision of the individual judge whether s/he will find the rationale of the constitutional case law persuasive enough and adhere to it.177 The front pages of Czech newspapers called this infamous episode in Czech constitutional history ‘the war of the courts’ (válka soudů). Two judges of the Supreme Court even refused to re-hear a case on remand that had been reversed by the Constitutional Court. Their argument was absurd: they claimed to be ineligible because of their bias—bias being the fact that their legal opinion was different from that of the Constitutional Court.178 Unlike the Polish Constitutional Tribunal, the Czech Constitutional Court had at its disposal a much more powerful tool to enforce its rulings—the constitutional complaint against individual decisions of the ordinary courts. The Court therefore has repeatedly quashed decisions of the ordinary judiciary in which the ordinary courts have disregarded constitutional jurisprudence (not openly, but merely by ignoring it). Despite

176

F. Šamalík, “Pokus o puč uvnitř ‘třetí moci’? Kauza zločinů komunismu” [The Attempt at a Coup within the ‘Third Power’? The Case of Communist Crimes], 137 Právník (1998), 221.

177

V. Mikule and V. Sládeček, “O závaznosti rozhodnutí Ústavního soudu” [On the Binding Force of a Decision of the Constitutional Court], Bulletin advokacie (1995) No.8, 35.

178

Procházka (in English), op.cit. note 15, 161.

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the fact that the most striking tensions have cooled down since 2000, the issue is still far from being settled.179 IV.2. The Problem of Interpretation Consistent with the Constitution A long time ago, the United States Supreme Court developed a rather common-sense rule according to which if there is a reading of the statute which is consistent with the Constitution, this reading shall be preferred over another inconsistent reading. As the Supreme Court, per (the first) Justice Harlan, had already declared in 1884: “[I]f there were room for two constructions, both equally obvious and reasonable, the court must, in deference to the legislature of the State, assume that it did not overlook the provisions of the Constitution, and designed the act of 1871 to take effect. Our duty, therefore, is to adopt that construction which, without doing violence to the fair meaning of the words used, brings the statute into harmony with the provisions of the Constitution […].” 180

Similarly, this rule is firmly established in Germany where it is referred to as the principle of the constitutionally conforming interpretation (‘Verfassungskonforme Auslegung’).181 The Federal Constitutional Court has held that: “if a rule allows several readings, but only one reading leads to a constitutionally permissible construction, the reading consistent with the Basic law is obligatory.”182 Thus, although an ordinary court is obliged to refer to the Federal Constitutional Court any law which it interprets as in conflict with the Constitution, in order for the latter to adjudicate its constitutionality, an ordinary court should not do so if there is any feasible way to interpret that law consistent with the Constitution.183 The rule of interpretation consistent with the constitution is one of the key factors of the New Constitutionalism. It can be seen as a prerequisite to any rational system of judicial review. This rule promotes the efficient practice of judicial review as it eliminates, in the greater number of cases, the need to set aside or nullify statutes. In this sense, it might moderate relations between the constitutional court and the legislature. It might also strengthen the power of the constitutional court: as a leading expert on comparative constitutionalism (and, since 2008, also a judge at 179

For a good description of the problem see Přibáň, op.cit. note 21, 373-394, especially: 380-382. However, I do not share Přibáň’s optimism for the principle that the Court’s judgments are of a generally binding force has “become a part of the Czech legal system which can hardly be disputed”. Ibid., 382.

180

Grenada County Supervisors v. Brogden, 112 US 261, 268-269 (1884).

181

P. Sachs (ed.), Grundgesetz: Kommentar (C.H. Beck, München, 1996), 61-62.

182

BVerfGE 49, 148 (157). In Germany, the first decision which established this doctrine was perhaps BVerfGE 2, 266 (282), quoted in: Sachs, op.cit. note 181, 61 (at note 61).

183

BVerfGE 70, 134 (137).

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the European Court of Human Rights) has noted: “constitutional tribunals have more of a chance to provide lasting and unsupervised determinations of the law by interpreting the law rather than voiding it.”184 Some have even dubbed it ‘soft constitutional judicial review’.185 However, its application is highly problematic in a system comprised of judges who do not feel obliged to follow constitutionally conforming interpretations as delineated by the constitutional court or even in a system where the constitutional court does not have the power to review decisions of the ordinary courts. I will demonstrate this point by discussing comparable examples from the Czech Constitutional Court, on the one hand, and the Polish and the Hungarian constitutional courts, on the other. The Czech Constitutional Court has the power to review the constitutionality of decisions of the ordinary courts. Therefore, it has openly declared the rule of interpretation consistent with the constitution as the part of the rules of constitutional construction. “Theoretically every statutory provision might be applied wrongly, i.e., in conflict with the Constitution”, said the Constitutional Court. “However, the circumstances that a statute might possibly be read in an unconstitutional manner cannot per se provide grounds for annulling it.”186 If a statute can be construed in several ways of which some are unconstitutional and at least one is constitutional, the Czech Constitutional Court should avoid annulment. It is the duty of the ordinary courts, the Court highlighted, to apply the statute in a constitutionally permissible way.187 The Justices of the Constitutional Court, particularly Pavel Holländer, have repeatedly emphasized that the ordinary courts are bound by the conclusions of the Constitutional Court and must interpret the law in light of the Constitution. Were it otherwise: “the decisions of the Constitutional Court would become useless. The Constitutional Court would be forced to a conclusion which is absurd and intolerable: it would not rely on the possibility of constitutionally consistent interpretation, but it would instead leave the principle of judicial self-restraint and in case of any however tiny possibility of unconstitutional construction would annul the statute.”188

In spite of the Constitutional Court’s capability to compel ordinary court adherence to its interpretative decisions, the problem persists: there have 184

A. Sajó, “Constitutional Adjudication in Light of Discourse Theory”, 17 Cardozo Law Review (1995), 1193, 1208.

185

M. Shapiro and A. Stone Sweet, On Law, Politics and Judicialization (Oxford University Press, Oxford, 2002), 156.

186

Decision Pl. ÚS 8/98, 12 ÚS (1998), 305 (also published in: Sb. (1998) No.300).

187

Decision Pl. ÚS 48/95, 5 ÚS (1996), 171 (also published in: Sb. (1996) No.121).

188

Holländer, op.cit. note 143, 542.

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been repeated refusals on the part of the ordinary courts to accept the binding force of Constitutional Court opinions. Sometimes, ordinary courts evince an unwillingness or, at best, the inability to follow Constitutional Court doctrine despite the Constitutional Court’s repeated attempts to specify the constitutional limits of statutory construction. On several occasions, there have been constitutional complaints objecting to the ordinary courts’ defiance of prior rulings in similar cases. In such cases, the Constitutional Court has been compelled to annul the statute at issue and to caution the legislature that—in order to avert the danger that a statute will be applied in an unconstitutional manner—it must be drafted in more precise terms.189 Occasionally, the Court has concluded that a constitutionally conforming construction, although possible, is unlikely to be achieved in judicial practice and, therefore, annulled the statute without attempting to lay down a constitutionally conforming interpretation for the ordinary courts.190 Both the Hungarian and Polish constitutional courts face a more difficult situation in this respect. Although the rule of interpretation consistent with the constitution would also seem self-evident under their constitutional orders, as neither court reviews the constitutionality of ordinary court decisions, they have no obvious means to sanction the disregard by ordinary courts of their own constitutionally conforming interpretation of the law. Therefore, both courts have found something of a solution in the Italian concept of ‘living law’, which seeks to overcome a similar problem relating to the model of constitutional review in Italy. The Italian Constitutional Court also lacks the power to adjudicate constitutional complaints. Nonetheless, it has been quite active in issuing constitutionally conforming interpretations and pioneered the concept of interpretative decisions. It uses the threat of subsequent annulment of the ‘living law’, the term for interpretations which ordinary courts insist

189

For instance the annulment of Art.250(f) of the Czech Civil Procedure Code, allowing an ordinary court to decide a case in camera without first consulting the parties for their views on the use of this procedure. Although if this discretion were interpreted carefully, the provision would withstand constitutional review, one of the Constitutional Court’s senates referred the matter to be decided by the Plenum because the provision was “as a matter of fact unconstitutional” and this unconstitutionality could not be eliminated by the Constitutional Court’s interpretative decisions. See decision Pl. ÚS 18/96, 6 ÚS (1996), 109; also published in: Sb. (1996) No.269.For another example, see Procházka, op.cit. note 15, 160.

190

Decision Pl. ÚS 25/97, 11 ÚS (1998), 25, also published in: Sb. (1998) No.159.

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upon in the face of its own constitutionally conforming interpretation, to sanction its interpretative decisions.191 The Hungarian Constitutional Court has proclaimed that the law will be reviewed as it is interpreted by law courts and will be annulled even if another plausible interpretation, consistent with the constitution, exists.192 The concept of living law is, of course, controversial and open to theoretical doubt because the legislature—which passed the law susceptible of the constitutionally conforming interpretation—in this way is punished for the behavior of ordinary courts.193 Furthermore, this approach seriously hampers the efficiency of the legislative procedure because the legislature is forced to do an ‘extra’ job, which would not otherwise be necessary. While it has been more restrained, the Polish Constitutional Tribunal has reached a conclusion quite similar to that of its Hungarian counterpart. On the one hand, the Tribunal has affirmed its earlier case law: a law susceptible of interpretations inconsistent with the Constitution will not be annulled if another, constitutionally conforming interpretation is possible.194 On the other hand, due to the frequent defiance by the ordinary courts of its interpretational rulings, the Constitutional Tribunal has been obliged to resort to other solutions than simply to presume that the ordinary judiciary will comply. Facing Continental formalism and an inability on the part of the ordinary judiciary even to presuppose that anything from a Constitutional Tribunal opinion would be considered binding, the Tribunal incorporated the decisive part of its constitutional interpretation into the statement of judgment. The most prominent Polish constitutional court justice, Leszek Garlicki, argued in favor of this practice by citing Article 190 (1) of the Polish Constitution, which proclaims the binding force of the Constitutional Tribunal’s decisions. In Garlicki’s view—on the strength of Article 190 (1)—interpretative rulings are binding on the ordinary courts because they are incorporated in the Court’s statement of judgment. Considering the absence of the mechanisms to compel compliance, however, he acknowledges that—at the end of the day—the issue of the effective 191

See, for example, E. Chel and F. Donati, “Methods and Criteria of Judgment on the Question of Rights to Freedom in Italy”, in: D. Beatty (ed.), Human Rights and Judicial Review: A Comparative Perspective (Martinus Nijhoff Publishers, Dordrecht, Boston, London, 1994).

192

See the Hungarian Constitutional Court case on Legal Guardians and the Family Act, decision No.57/1991 of 8 November 1991, per Lábady, J., and the foreword to this decision in Sólyom and Brunner, op.cit. note 14, 171.

193

See the dissenting opinion in the 1991 Legal Guardian’s case, ibid.

194

See decision K. 5/96, II OTK ZU (1996), 16, 24 (citing with approval the decisions K. 2/94, II OTK ZU (1994), 48, and K. 17/93, I OTK ZU (1994), 92).

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application of interpretative rulings depends on the ordinary judiciary’s willingness to follow the Tribunal’s decision which, in turn, largely will be a function of the persuasiveness of the Tribunal’s reasoning.195 Facing opposition in the ordinary judiciary, and its own inability to enforce its rulings, in the end the Tribunal has resorted to the ‘Hungarian’ solution of ‘living law’. The Tribunal has decided that although isolated instances of the unconstitutional interpretation of a law by the ordinary courts or state authorities cannot lead to the law’s annulment, the law should be annulled if it has acquired an unconstitutional meaning through consistent practice.196

V. Making New Constitutionalism Inclusive vis-à-vis the Ordinary Courts: The Problem of the ‘Over-Centralization’ of Centralized Judicial Review Although it is frequently assumed that judicial review in countries with Continental legal systems is exclusively confined to purely centralized judicial review of general norms, such is not the case; almost every Western European country has some form of decentralized judicial review. Most Continental systems entrust the ordinary courts to review conflicts between international and municipal law, either subject to the principle lex posterior derogat priori (the later law prevails over the earlier one) or to the more encroaching principle according to which international law sets aside municipal law, whether enacted previously or subsequently.197 Judicial review of general rules issued by the administration (decrees, regulations etc.) is also widespread in European systems. There are even a few countries with a Continental system which practice either a purely decentralized system of judicial review (such as Greece or the Scandinavian countries) or a mixed system of judicial review (Portugal).198 195

Garlicki, op.cit. note 161, 18-19.

196

See decision K. 5/96, II OTK ZU (1996), 16, at 27. Cf. on this topic. Garlicki op.cit. note 161, 18, arguing that the ordinary judiciary is bound by interpretative rulings of the Constitutional Tribunal. This means “that the courts, in further application of the law, must give to it the meaning adjudicated by the Constitutional Tribunal, and must abstain from other meanings”. On this see, (in English) Procházka, op.cit. note 15, 108ff.

197

Cf. generally, A. Cassese, “Modern Constitutions and International Law”, Recueil des Cours (1985-III), 192-330.

198

See A.R. Brewer-Carías, Judicial Review in Comparative Law (Cambridge University Press, Cambridge, 1989), 168-176 (describing Greece), 265-270 (describing Portugal); and A. Husa, “Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective”, 48 Am. J. Comp. L. (2000), 345.

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Most importantly, in 1978, the European Court of Justice designated decentralized review as the basic paradigm for the judicial enforcement of European Union law within the national legal orders. The European Court of Justice held that—regardless of a national constitutional doctrine prescribing centralized judicial review provided by a constitutional court as the exclusive means for enforcing a higher legal norm’s supremacy over an act of parliament—European law requires that when an ordinary court is faced with the situation where a domestic law is incompatible with the applicable European rule, it may not refer the matter to the constitutional court but, rather, must itself resolve the case immediately by setting aside the conflicting domestic law.199 Therefore, although ideologically the doctrine of stare decisis does not exist in the Continental system, in fact a system of decentralized judicial review exists in all EU Member States.200 There are even opinions that the centralized model of constitutional review seems to be in crisis, for both internal and external reasons. The former include: the delays inherent in the requirement that constitutional issues be decided ‘centrally’, i.e., exclusively by the constitutional tribunal; the difficulty of determining whether or not a particular statute is constitutional without it first being tested in individual real life cases; the problem of drawing a persuasive distinction between rendering a constitutionally conforming interpretation of a statute—which often substantially modifies it—on the one hand, and setting aside the statute, on the other; and the inefficiency of a system which requires its judges to refer a statute to the constitutional tribunal even if it is clear from that tribunal’s previous case law on similar issues that the statute would be proclaimed unconstitutional by it. The latter include, for instance, the already mentioned 199

Case C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (II), ECR (1978), 629, holding that “a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative and other constitutional means”.

200

Randolph Brewer-Carías devoted his entire book to prove his claim that centralized and decentralized judicial review are compatible with both Continental and Common Law systems. Brewer-Carías, op.cit. note 198. Cf. a critical reevaluation of the theses of incompatibility of decentralized judicial review with the Continental system in: W. Sadurski, “Legitimacy and Reasons of Constitutional Review after Communism”, Sadurski, op.cit. note 21, 163-187, 176-177 (concluding that decentralized judicial review seems to be more legitimate, especially in view of the problematic legitimacy of centralized review due to the fact that it involves abstract motions submitted by the parliamentary minority which lost a normal parliamentary procedure and is decided without any existing case, as opposed to decentralized review where constitutional issues are decided in relation to real life controversies).

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European law principle of decentralized review of national law for its conformity with EU law and the primacy of international treaty law over domestic legislation.201 In light of these considerations, it is worth noting that in most post-Communist countries, the previous Communist paradigm of the judiciary’s unconditional observance of the entire legal system (including various sub-statutory directives and regulations) seems to have been replaced by the paradigm of a rigid adherence to centralized judicial review. Slovakia represents the most extreme example. The Slovak Constitution vests in its Constitutional Court the exclusive competence to review any possible conflict among various legal norms: conflicts of statutes, or even sub-statutory decrees, with international treaties, of statutes with the constitution, as well as of statutes with sub-statutory decrees, i.e., the issue of their legality.202 Therefore, Slovak ordinary judges do not have the power to set aside a domestic law in conflict with general international law and must refer any such matter to the Constitutional Court. In fact, as Slovak judges operate within a completely centralized system of judicial review, they only acquired the power of judicial review on 1 May 2004 when they became part of the decentralized European judiciary and, thus, obliged to apply European law.203 If too much emphasis is placed on the central role of constitutional courts in the construction of the rule of law, the ordinary courts have a strong tendency to disappear from the scene. Although constitutional courts are an important factor in remolding of the Central European concept of law and the judicial ideology of textual positivism, their ultimate success depends on ordinary judges joining in the common enterprise of building the rule of law and the new idea of constitutionalism. In such circumstances, centralized constitutional review presents a clear danger of being ‘over-centralized’; new constitutionalism being only a vague and in practice never implemented idea. The gap between the ordinary judges and the constitutional courts might continue to widen and, subsequently, 201

V. Ferreres Comella, “The European Model of Constitutional Review of Legislation: Toward Decentralization?”, 2 International Journal of Constitutional Law (2004), 461.

202

In the case of Slovakia, see Art.125 para. 1 (a) and Art.144 para. 2 of the Constitution (as amended in 2001); and cf. Art.95 para. 2 of the Czech Constitution (in its redaction until 2002) and the subsequent reading of this article, together with Art.10, by the Constitutional Court; see this Chapter, Part V.1. infra.

203

In the Czech Republic and Poland, ordinary judges have the power of statutory review, i.e., to decide whether a regulation is consistent with a statute. Accordingly, when a judge determines that a regulation is contrary to a statute, she has a duty to refrain from applying the regulation. See Art.95 para. 1 of the Czech Constitution; for Poland, see Garlicki, op.cit. note 157, 274.

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even more hinder the potential of the ordinary judges who are inclined to make a distinction between ‘them’ (the constitutional justices, the only judges who adjudicate in an activist way and deal with abstract principles of law) and ‘us’ (the ordinary judges, who are supposed to strictly follow the letter of the law like a mechanical machine). While the very nature of centralized post-Communist constitutional courts is exclusive (they are the principal forum for constitutional arguments, they and only they can annul the law; and formal annulment through which the law loses its validity, unlike setting the law aside, matters in the post-Communist legal system), their argumentation must include ordinary courts, and the ordinary courts must be invited to engage in building the rule of law. It is possible to find an explanation for the Czech ordinary judiciary’s ongoing adherence to textual positivism precisely as a consequence of the fact that the Constitutional Court—by virtue of its power to adjudicate constitutional complaints—carefully monitors the constitutionality of their decisions. Ordinary judges might thus be predisposed not to bother themselves with complex constitutional doctrines. They can justify their abdication of this responsibility by arguing that these ‘extra-textual’ rationales lie outside their expertise or that it is up to ‘them’, i.e., Justices of the Constitutional Court, to deal with these ‘non-legal’ considerations on the basis of a constitutional complaint and, where the Constitutional Court Justices applying ‘non-law’ would find a constitutional defect, correct the ordinary court’s ‘error’. It can be doubted, however, that the lack of direct constitutional court control over ordinary judiciary’s decisions would automatically lead to the latter showing a higher degree of responsibility. If we consider Hungary— where the constitutional complaint proper does not exist at all and the ordinary judiciary is not supervised in this manner—the pressure on the latter to be more responsible for protecting human rights apparently has had little impact. The Hungarian Constitutional Court, equipped only with purely abstract constitutional review, has not succeeded in educating the ordinary judiciary to understand the New Constitutionalism. Even in 2002, as a former advisor to a Hungarian constitutional court justice noted: “It is still the case that most ordinary court judges see no relationship between the constitution and their everyday practices of deciding cases.”204 Perhaps it is because of this that, in 2001, the Slovak Constitutional Court’s competences were extended to include also the power to hear constitutional complaints against ordinary courts’ decisions.205 204

G. Halmai, “The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court”, in: Sadurski, op.cit. note 21, 189-211, at 209.

205

See this Chapter, Part I.2. supra.

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Viewed against Central European backdrop, the Polish ordinary judiciary—or, at least, its two high courts—seems to be the most open to New Constitutionalism and a new constitutional ideology of decisionmaking. Although, as in Hungary, ordinary citizens have extremely limited access to the Constitutional Tribunal (an individual might petition the Tribunal only by contesting the constitutionality of the law which the public authority has applied against him), the ordinary courts—and, above all, the high courts of the ordinary judiciary (the Polish Supreme Court and the Polish Supreme Administrative Court)—have taken their role in the protection of individual rights very seriously. They have developed a new constitutional dogmatism and have dealt with sophisticated questions concerning the intertemporal effects of law and the methodology of individual rights. The Supreme Court, for instance, dealt extensively with the new 1997 Constitution in more than sixty decisions in less than two years immediately following the Constitution’s entry into force.206 The reasoning of Polish courts is often instrumental and pragmatic. For instance, after Poland joined the Council of Europe in 1991, the Polish Supreme Court began to apply the case law of the European Court of Human Rights, citing as one of its main rationales “the Polish interest of not being criticized by the European Court of Human Rights or doctrine of international law or even popular newspapers”.207 Below, I will show how the countries of the former Czechoslovakia and Poland differed as regards their respective ordinary court’s ability and willingness to enforce the New Constitutionalism and international law. V.1. Former Czechoslovakia: The Empires of Centralized Judicial Review The centralized constitutional courts are able to create a vital constitutional culture in Europe; their success in this endeavor depends, however, on their general acceptance by the legal community and on the level of the judicial dialogue between the ordinary and constitutional courts. In Central Europe, the view is too often expressed that ordinary judges must not engage in activist reasoning but, rather, must apply the law textually, that they are not able to take constitutional rights and values seriously, and that the constitutional court is not a ‘court’ but, rather, a special and unique body that does not form a part of the judicial power.208 206

Procházka, op.cit. note 15, 113.

207

A. Wyrozumska, “Impact of the Case Law of the Organs of the European Convention on Human Rights on Domestic Law and the National Judge”, in: The Judge and International Law (Council of Europe Publishing, Strasbourg, 1998), 139, at 150, citing a decision of the Polish Supreme Court of 11 January 1995.

208

For this view in Poland, see W. Sanetra, “W sprawie związania sądów powszechnie obowiązującą wykładnią ustaw” [On the Impact on Ordinary Courts of the Gener-

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According to some domestic observers, the Czech Constitutional Court—despite the fact that among its Central European counterparts it is the court most interlinked with the ordinary judiciary—perceives itself as the only ‘fighter in the battlefield’.209 There is no doubt that this perception results from a widespread feeling that ordinary judges are not competent to understand complex constitutional doctrines. However, this exclusionary approach might further alienate ordinary judges; exacerbate their lack of capacity to cooperate. This might lead to a final result where—despite the expectation of inter-judicial discourse between the Constitutional Court and the ordinary judiciary—the values of textual positivism would become even more firmly entrenched throughout the ordinary judiciary. In the Czech Republic, a recent challenge to the dominance of centralized judicial review was made when the ‘Euro-Amendment’ to the Constitution entered into force in 2002. Until 2002, the Czech Constitution had not incorporated international law in general; rather, only international human rights treaties and conventions had vested the exclusive power to resolve conflicts between international human rights treaties and domestic law in the Czech Constitutional Court.210 In 2002, the Czech Constitution finally adhered to the doctrine of monism in its relation to international law and incorporated the entire international treaty law into the domestic legal order. The (revised) Article 10 implies that both the ordinary courts and administrative bodies have the duty to set aside a domestic law if it is in conflict with any ratified and published international treaty. This has been the most important change of the Czech Constitution since its enactment in 1992. However, in June 2002, three weeks after the Euro-Amendment had entered into force, the Constitutional Court decided a case in a way that thwarted this basic purpose of the Euro-Amendment.211 In dicta, it ally Binding Interpretation of Statutes], 6 (9) Przegląd Sądowy (1996), 3, 8-9, arguing that the Constitutional Tribunal is not a court and, therefore, that the judges cannot be bound by the decision of such a non-judicial body. For the view that, after the enactment of the new Constitution of 1997, the Tribunal is clearly a ‘court’, see Garlicki, op.cit. note 161, 3-4. 209

See, e.g., Jan Filip, “Nález č. 403/2002 Sb. jako rukavice hozená ústavodárci Ústavním soudem” [Decision No. 403/2002 Sb. as a Gauntlet Thrown Down to the Constituent Assembly by the Constitutional Court], 2 (11) Právní zpravodaj (2002), 12.

210

See Art.87 para. 1 (a) of the Constitution of the Czech Republic, in the wording in effect until 1 June 2002. See E. Stein, “International Law in Internal Law: Toward Internationalization of Central-Eastern European Constitutions?”, 88 American Journal of International Law (1994), 427.

211

Decision of the Czech Constitutional Court of 25 June 2002, Sb. (2002) No.403 (the case concerning the constitutionality of the bankruptcy law).

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reasoned against the clear wording of the Constitution and held that the power to adjudicate conflicts between the domestic statutes and international human rights treaties is still exclusively vested in the Constitutional Court and that each ordinary court must refer these issues to it. The Court based its argument on Article 9 (2) of the Constitution (the ‘eternal’ clause providing that basic principles of the rule of law cannot be changed even through a constitutional amendment212) and concluded that the transfer of the power to set aside the law to the ordinary courts would impair the constitutional protection of human rights, which with regard to Article 9 (2) is unacceptable. In a system without binding judicial precedent, the Court argued, only a centralized system of judicial review can function properly. In other words, the Czech Constitutional Court entrenched centralized judicial review (supposedly only vis-à-vis human rights conventions), because the Court reserved exclusively for itself and forever the power to resolve any conflict between an international human rights issue and domestic law. The actual (although undisclosed) rationale for the Czech Constitutional Court’s approach is easy to detect. The Constitutional Court feared that if international law were beyond its reach—considering the opinions inside the ordinary judiciary—international treaties would rarely be applied. The application of international law is obviously contrary to the deeply entrenched ideals of textual positivism in the region. In the general legal community, including the ordinary judiciary, international treaties are not viewed as a common source of law and legal argument but, rather, as something of interest only for the Justices of the Constitutional Court. Most Central European judges are entirely lacking in experience in applying international law (since international law is rarely applied), although almost all post-Communist legal systems (with the sole excep-

212

In contrast to its German counterpart, the Czech eternal clause does not enumerate these entrenched principles.

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tion of Hungary213) are now based on monist models.214 Monism stands, however, only on paper. In fact, the ordinary courts rarely consider even the European Convention on Human Rights, perhaps relying upon the implicit formalistic notion that it is not for them to apply anything but domestic law. The situation is no better among practicing lawyers who, in their clients’ interest, should encourage judges to apply international law; in fact, on the whole, they are as ignorant of it as are the judges themselves. Even in those few cases in which the courts do take the Convention into account, they often consider merely the black letter rules (the text), without any regard to the case law of the European Court of Human Rights—the only body competent to find the authentic meaning of the Convention. Incidentally, this situation has been acknowledged even by certain Czech lower-court judges, who have admitted “that the impact of the case law [of the European Court of Human Rights] is very low, in particular with respect to lower national courts”.215 Unfortunately, the situation does not seem any better at the Czech Supreme Court. Although the Supreme Court decides thousands of cases 213

The dualism of the Hungarian legal system was softened in 1989; now, the Constitution expressly provides that the legal system of the Republic of Hungary accepts the generally recognized principles of international law and the harmonization of the country’s domestic law with the obligations assumed under international law. Art.7 para. 1 of the Hungarian Constitution. Cf. H. Küpper, “Völkerrecht, Verfassung und Außenpolitik in Ungarn”, 58 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1998), 239-289; and A. Harmathy, “Constitutional Questions of the Preparation of Hungary to Accession to the European Union”, in: A.E. Kellermann, J.W. de Zwaan, and J. Czuczai (eds.), EU Enlargement, The Constitutional Impact at EU and National Level (TMC Asser Press, The Hague, 2001), 315ff. Although the generally recognized principles of international law do not have a precise rank in the hierarchy of Hungarian legal sources, they form part of Hungarian law and, according to the Hungarian Constitutional Court, affect the entire Hungarian legal system. Cf. ibid., 326, citing decision No.50/1993 (X.13) ABH (1993) (noting that this was not uncontroversial and that the opinion had been criticized by the Hungarian scholars).

214

Cf. Stein, op.cit. note 210. As we have briefly noted above, in 2001, the Czech and Slovak Republics, two of the few remaining post-Communist bastions of dualism, made international law directly enforceable in the municipal legal systems. See Art.7 para. 5 of the Slovak Const., as amended by Const. Act No.90/2001, Z.z. (2001) (an English version of the Constitution is available at ); and Art.10 of the Czech Const., as amended by Const. Act No.395/2001, Sb. (2001) (available at ).

215

See Judge R. Fremr of the High Court and Judge O. Němcová of the Prague City Court in: The Judge and International Law, op.cit. note 207, 36.

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each year, for example, in its decisions during a two-year period (2000 and 2001), it referred to the Convention a mere four times, citing the ECtHR’s case law in only three of those cases.216 At least in some other cases, the petitioners had based their arguments on the European Convention— without, however, succeeding in eliciting any response from the Court. The situation did not improve substantially after 2002; this, despite the fact that the Euro-Amendment (discussed above) entered into effect in June 2002, in principle placing upon the ordinary courts the duty to apply all ratified international treaties. In 2003, the Supreme Court refused even to take into consideration European Court of Human Rights rulings because they are not binding precedents.217 Similarly, in Slovakia, out of 120 decisions and statements of the Supreme Court officially reported in 2001, only in one instance was mention made of the European Convention on Human Rights—without, however, going into the jurisprudence.218 One would be very likely to concede that it was reasonable for the Czech Constitutional Court not to abdicate its power to apply international treaties. What is worrisome, however, is the conclusion that the Constitutional Court—in applying the strongest weapon it possesses (eternal law which is not within the reach of constitutional amendment)— seemed openly to have given up any hope that the ordinary courts would ever be able to apply international law and, thereby, set aside municipal law if it were to conflict with an international treaty. After all, without the collaboration of the ordinary judiciary, genuine monism is a dead letter, and international law will never be applied in fact. As a consequence, the proper application of European law (as discussed below) is put also in question. V.2. Poland: Activism of the Ordinary Judges and Battle over Centralized Judicial Review The mixed model of centralized and decentralized judicial review seems to be operating in Poland. Unlike their Czech counterparts, the far more activist ordinary courts in Poland have been able to retain their power of judicial review. The story of the Polish judiciary began during the Communist regime and has had an uninterrupted continuation after its fall. In contrast with the situation in Czechoslovakia and Hungary, a substantial majority of Polish scholars dealing with the issue of relation of international to municipal law in the 1960s were in favor of the direct 216

My findings are based on a full-text search at (the official website of the Czech Supreme Court).

217

Cf. op.cit. note 117 and the accompanying text.

218

See decision No.59/2001, Zbierka stanovísk (2001).

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applicability of international treaty law, although Parliament—which was considered, in socialist theory, the supreme state body—did not participate in the process of ratification. The basic thesis was that the direct applicability of international law results from its own independent force.219 Occasionally, the Polish ordinary judiciary followed these theses,220 although in the 1980s these ideas became troublesome for the Communist rulers since they could have endangered the State’s oppression of the political opposition. During the era of workers’ strikes and the Solidarity trade union movement, the Supreme Court finally refused to follow the doctrine for strikingly political reasons. The Court reasoned that international treaties are not applicable within the Polish legal order unless they had been transformed into a source of domestic law: “Unless transformed into municipal law, the norms of international law as such do not form a part of municipal law and are not binding for courts. […] Trade unions are registered by courts on the basis of the Polish Law on Trade Unions and not on the basis of conventions ratified by Poland. […] The very possibility of conflict between these provisions is of no significance for the solution of this case.”221 219

The most prominent figure in Polish doctrine who espoused this view was Stefan Rozmaryn; see his works in the 1960s: “Skuteczność umów międzynarodowych PRL w stosunkach wewnętrznych” [The Validity of the International Agreements Concluded by the Polish People’s Republic in Internal Relations], 17 Państwo i Prawo (1962), 951-96; and Ustawa w Polskiej Rzeczypospolitej Ludowej [Law in the Polish People’s Republic] (Państwowe Wydawnictwo, Naukowe Warszawa, 1964), 319ff. claiming that the silence of the Constitution did not entail the inapplicability of international treaties but, rather, their direct applicability, as otherwise the Constitution’s failure to provide for any reception, either through incorporation or transformation, of international law into domestic law would have been inexplicable. In other words, in Rozmaryn’s view, the duty to apply those treaties in Poland existed ex proprio vigore, because of their own independent force within domestic legal order. For a detailed description, see W. Czapliński, “Relations Between International Law and the Municipal Legal Systems of European Socialist States”, 14 Review of Socialist Law (1988), 105.

220

In an international insurance case, this doctrine was implicitly upheld by the Polish Supreme Court, which remarked in 1970 that: “in transactions of this sort primarily the rules of inter-State law find application, whether they follow from appropriate conventions or appropriate and established customs. Only if such rules were nonexistent could one then consider the application of Polish law or another domestic law.” S.A. Warta v. Tadeusz S. and Piotr D., decision of the Polish Supreme Court of 18 May 1970, translated in: H. Lauterpacht (ed.), International Law Reports, Vol.47 (Cambridge University Press, London, 1974), 28-30, at 29.

221

Decision of the Polish Supreme Court of 25 August 1987, OSPiKA (1988) No.10, 447, 449, as translated in: R. Hliw and L. Wiśniewski, “The International Covenants on Human Rights in the Case Law of the Polish Supreme Court, the Constitutional Court and the High Administrative Court”, 22 Polish Yearbook of International Law (1995-1996), 27. The court thus implicitly overruled its own decision made seven years earlier. See A. Wyrozumska, “Direct Application of the Polish Constitution and International Treaties to Private Conduct”, 25 Polish Yearbook of International Law (2001), 5, at 17.

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After the fall of the Polish Communist regime—without express constitutional authorization222 but with overwhelming doctrinal approval—both the ordinary and constitutional judiciaries started to apply international law directly. Such judicial activism is striking in comparison with the passivity of the ordinary judiciary in the former Czechoslovakia, where it would have been unimaginable for the system to be moved from dualism towards monism by judicial action; virtually all scholars discussing the issue have called for the status of treaties to be modified by constitutional amendment, not via judicial decision. The Supreme Court of Poland, for instance, has held that Article 15 of the 1966 Covenant on Civil and Political Rights belonged to the category of rules of international law which could be directly applied in the domestic legal order ex proprio vigore. At stake was the fate of an individual who had been sentenced during the 1981 period of Polish martial law in violation of the prohibition of retroactive criminal law.223 Most powerfully, the Supreme Court—in its decision of 15 June 1993 on the legality of the registration of the Association of World War II Combatants of Former German Soldiers in the Polish Republic—annulled the decision of the lower court as inconsistent with the European Convention of Human Rights: “The Supreme Court has also declared that the international agreements on human rights should be applied directly in Poland, without transformation. The reason for this is that Poland is a state governed by the rule of law, which means it fulfils its obligations contained in international treaties concluded and duly ratified. The convention on human rights belongs, in the opinion of the Supreme Court, to the category of international treaties which are concluded with the intention of the contracting parties to apply the treaty directly on their territories. […] The Supreme Court recalls also Art.27 of the Vienna Convention on the Law of Treaties 1969, ratified by Poland in 1990, which provides that a state cannot refer to the provisions of its national law in order to justify the lack of execution of international treaties within its territory.”224

Although the pre-1997 case law was conflicting, there were some indications that international law was supposed to have the force of law and that courts had the power to set aside subsequent inconsistent domestic 222

Meanwhile, however, the Constitution was amended in April 1989 to make the ratification of international treaties subject to the approval of the Parliament by adoption of a law. This modification at least legitimized the courts’ application of international treaty law in the domestic legal order. Cf. Z. Kędzia, “Prawa człowieka w prawie międzynarodowym a prawo polskie” [Human Rights in International Law and Polish Law], 44 (9) Państwo i Prawo (1989), 16.

223

See, for instance, the decision of the Polish Supreme Court of 17 October 1991, II. KRN 274/91, OSKNW (1992) No.3-4 item 19; English translation in: 19 Polish Yearbook of International Law (1991-1992), 257ff.

224

English translation in: 21 Polish Yearbook of International Law (1994), 319ff.

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legislation.225 The Constitution of 1997 finally settled the issue. Article 87 (1) proclaims the sources of generally binding law of the Republic of Poland to be the Constitution, statutes, ratified international agreements, and regulations. Article 91 further provides that—after its publication in the Official Gazette—a ratified international agreement constitutes part of the domestic law and is to be applied directly, unless its application depends on the enactment of a statute.226 An international agreement, ratified upon prior legislative consent, has precedence over a statute if the former cannot be reconciled with the latter.227 In fact, the new 1997 Polish Constitution has changed nothing in respect of the Polish judiciary’s power to set aside the law due to its conflict with an international treaty. In spite of possible different readings of the Constitution, especially its Article 193, the competence of ordinary Polish courts to set aside the law (including a statute) for its conflict with an international treaty—entered into either prior, or subsequent, to the adoption of the law—has not been seriously questioned since 1989.228 Already in 1995, the Supreme Court proclaimed that “since the Polish accession to the Council of Europe, the case law of the European Court of Human Rights in Strasbourg may and should be taken into consideration to interpret the provisions of the Polish law”.229 Concerning the judicial attitude toward the Convention, domestic observers have remarked that it is “the strenuous process of shaping the attitude according to which the court would be able to directly implement the international law of Human Rights in its decisions”.230 Similar trends regarding the application of EU law followed.231 Polish ordinary judges had, however, much higher ambitions. They have openly claimed the power of judicial review of constitutionality, di225

For more detail, see Hliwa and Wiśniewski, op.cit. note 221, 32ff.

226

Art.91 para. 1.

227

Art.91 para. 2.

228

Wyrozumska, op.cit. note 221, 23.

229

A. Wyrozumska, “Impact of the Case Law of the Organs of the European Convention on Human Rights on Domestic Law and the National Judge”, in: The Judge and International Law, op.cit. note 207, 149ff., at 150, citing a decision of the Polish Supreme Court of 11 January 1995.

230

L. Leszczyński, “Application of the European Convention in the Polish Courts: An Impact on the Judicial Argumentation”, 2 East European Human Rights Review (1996), 19, 37.

231

See, e.g., W. Czapliński, “Harmonisation of Laws in the European Community and Approximation of Polish Legislation to Community Law”, 25 Polish Yearbook of International Law (2001), 45, 55. Cf. Wyrozumska, op.cit. note 221, citing judicial decisions of the Polish Supreme Court applying international treaties, European law and the constitution in a horizontal way.

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rectly challenging the authority of the Constitutional Tribunal. Ordinary court judges have justified their claim in an ‘American’ way, resting upon the reasoning used by Justice Marshall in 1803: they have emphasized the value of Article 8 of the 1997 Constitution which provides that the Constitution is the supreme law of Poland. And in sharp contrast to the former constitution, the same article provides that constitutional provisions shall apply directly. Yet, unlike Justice Marshall, the Polish Supreme Court must contend with the Constitutional Tribunal and the Continental tradition of centralized judicial review of constitutionality. The judges found additional support in Article 193 of the Polish Constitution which provides that: “[a]ny court may refer a question of law to the Constitutional Tribunal as to the conformity of a normative act to the Constitution, ratified international agreements or statute, if the answer to such question of law will determine an issue currently before such court.”232

Some ordinary judges, especially those of the Supreme Court,233 place emphasis on the wording that a court ‘may’ refer a question of law and have concluded that the Constitution thereby has given them discretion whether or not to refer the issue to the Constitutional Tribunal.234 The ambiguity of this clause was contrasted with more categorical clauses in Western European constitutions.235 Yet, the question whether or not ordinary judges have the power of judicial review of constitutionality was highly controversial236 and still—to a certain extent—remains unsettled. 232

Emphasis added.

233

However, this issue was not one that concerned exclusively the Polish Supreme Court judges. Many lower-court judges have joined the discussion. Cf. the article by a Regional Court judge, W. Sługiewicz, “Konstytucyjne aspekty funkcjonowania orzecznictwa sądów powszechnych” [Constitutional Aspects of Judicial DecisionMaking by the Ordinary Courts], 10 (2) Przeglad sadowy (2000), 27.

234

This is, for instance, the opinion of Walerian Sanetra, a Judge of the Polish Supreme Court and Professor of the University of Warsaw Faculty of Law, “Sąd Najwyższy w systemie wymiaru sprawiedliwości” [The Supreme Court in the System of the Judiciary], 9 (7-8) Przegląd Sądowy (1999), 3-15. Critically, on this textual argument, see A. Wasilewski, “Włądza sądownicza w Konstytucji Rzeczypospolitej Polskiej” [The Judicial Power under the Constitution of the Republic of Poland], 53 (7) Państwo i Prawo (1998), 3-20, 17-18.

235

A. Wasilewski, “Pytania prawne do Trybunału Konstytucyjnego. Problemy interpretacyjne na tle art.193 Konstytucji RP” [Legal References to the Constitutional Tribunal. Interpretational Problems of Art. 193 of the Polish Constitution], 10 (5) Przegląd Sądowy (2000), 3-11 (at 3, at note 1, comparing Art.193 of the Polish Constitution with analogous provisions in the Austrian, German and Spanish constitutions).

236

Critically, e.g., A. Mączyński, “Bezpośrednie stosowanie Konstytucji przez sądy” [Direct Application of the Constitution by the Courts], 55 (5) Państwo i Prawo (2000), 3-14, arguing that it is not up to the discretion of the ordinary courts to submit the

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Ordinary judges argue that facing a constitutional directive to apply the constitution directly, it would be absurd to insist that a judge who has no doubts that a statute is unconstitutional must, nevertheless, refer the issue to the Constitutional Tribunal.237 The Supreme Court has repeatedly emphasized the ‘independence’ of the ordinary judiciary and has held that a judge faced with a conflict between the Constitution and ordinary law must decide in accordance with the former. She should refer the issue to the Constitutional Tribunal only if the interpretation itself remains doubtful. The Supreme Administrative Court has joined the Supreme Court with a similar rationale, emphasizing that it is obliged to apply the norm with a higher rank in the hierarchy of sources of law.238 One of the judges of the Polish Supreme Court proposed a compromise with the Constitutional Tribunal. He concluded that, as a general matter, ordinary judges have the obligation to refer to the Constitutional Tribunal the issue of a statute’s constitutionality or its conflict with an international treaty. There are, however, important exceptions. First, the ordinary judge need not refer the law to the Tribunal if it is a question of the unconstitutionality, illegality or conflict with an international treaty of a law ranking lower than an act of Parliament. Second, the law will not be referred to the Tribunal if meanwhile it has been abolished; each judge must make her own judgment about the constitutionality of the application of such a law if intertemporal rules call for such application. Third, and most importantly, the laws which were in force when the new constitution was adopted must be considered abrogated by force of the constitution. Referring to the European doctrines acte claire and acte éclairé, the judge reasoned that if—in view of the letter of the law or the case law of the Constitutional Tribunal—the issue is clear, there is no point in referring it to the Tribunal.239 In contrast, the justices of the Constitutional Tribunal emphasized that the Tribunal is the only institution within Poland competent to review constitutionality. In the view of Justice Andrzej Zoll, as expressed shortly after enactment of the new 1997 Constitution: “Article 8 cannot be understood as allowing the judge who noticed the conflict between the statute and the Constitution to ignore the statutory provision and base issue to the Constitutional Tribunal; rather, it is their duty to do so. The primary reason for Mączyński’s argument is the fear of conflicts between the ordinary courts, and perhaps even administrative authorities, and the Polish Constitutional Tribunal, resulting in anarchy in the legal system. 237

Wyrozumska, op.cit. note 221, 10.

238

Ibid., quoting the Polish Supreme Court’s decision of 26 May 1998 on election complaints and other decisions and the Supreme Administrative Court’s decision of 4 December 2000 (V S.A. 613/00).

239

Wasilewski, op.cit. note 235, 3-11, at 6-7 (including note 9).

258

The Judiciary in Central and Eastern Europe its decision directly on the Constitution, because it would lead to chaos. The judge is bound by the Constitution but also by the statute […].”240

Facing opposition of the two highest tribunals of the Polish ordinary and administrative judiciary, the Constitutional Tribunal softened its position somewhat. In its judgment of early 2000, answering the legal question which had been referred to it, the Tribunal admitted that Article 8 of the Constitution (on the direct application of the Constitution) does allow the direct application of the Constitution by the ordinary judiciary. The courts, however, should proceed in this way with an utmost care. In addition, the direct application of the Constitution does not empower judges to disregard statutory norms (acts of parliament) in force, because the Constitution is regularly made more concrete in the statutes. The Tribunal expressly denied the ordinary courts’ alleged competence to decide a case on the basis of the Constitution and set aside the statute. Finally, the Tribunal conceded that—as regards the duty to refer to the Tribunal questions of the constitutionality of laws—ordinary judges enjoy discretionary power.241 V.3. On Disobedient Judges: The Polish and Czech Situation Compared How did the Polish Supreme Court achieve such a strong position vis-à-vis its own Constitutional Tribunal, while the Czech ordinary judges failed? First, we must be aware that the object and substance of the dispute between the Czech ordinary judiciary and the Constitutional Court on the one hand, and the Polish Supreme Court and the Constitutional Tribunal, on the other, differed considerably. With the exception of one isolated attempt by a lower court (mentioned above), Czech ordinary judges have never claimed for themselves the power of judicial review. The Czech Supreme Court revolted because it disagreed with the Constitutional Court’s activist jurisprudence, going beyond the ordinary judiciary’s realm of limited law. In contrast, their Polish counterparts opposed the Constitutional Tribunal not because they were against its substantive jurisprudence. It was that they—the judges of the Supreme Court rather than the constitutional justices—were deemed to be the proper forum to defend individual rights and change the judicial ideology of law application. The Constitutional Tribunal was intended to deal exclusively with abstract norm control on the basis of petitions by deputies of Parliament dissatisfied with the outcome of the legislative process in which their views did not prevail. 240

Quoted and translated by: Wyrozumska, op.cit. note 221, 10.

241

Ibid., 11, quoting decision P. 12/98 of the Polish Supreme Court of 22 March 2000. See (in Polish) OTK ZU (2000) No.2 item 67, 300ff., especially: 304-305.

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Second, the Polish courts had much more experience in activist adjudication and treaty application, including in the time of the Communist regime. Even more importantly, the Polish judiciary has always appeared much more activist than has the Czecho/Slovak judiciary, even during the final three Communist decades. The Polish ordinary courts have used their power to set aside the law or to interpret it consistently with international law. The Polish Supreme Court judges are apparently willing to take their transformative role seriously, fight formalism and textual positivism of the ordinary judiciary and to contribute to the Europeanization of Polish law.242 In my opinion, the most decisive reason, however, was the composition of both courts. As I have shown above,243 while the Czech Supreme Court is composed of career judges, who have spent their entire life in the judiciary, the Polish legal academia and other outsiders to the ordinary judiciary are substantially represented among the judges of Poland’s two highest ordinary courts (the Supreme Court and the Supreme Administrative Court). It might be considered that the mixed system of judicial review— where conflicts between municipal law and international treaty law are reviewed by the ordinary judiciary, while conflicts between the constitution and statutes are heard by the constitutional judiciary—has demonstrated its worth in Poland, where it has been introduced, in that the Polish ordinary judiciary has shown improved performance as regards overcoming textual positivism. In fact, Polish constitutional doctrines have been developed by both the Constitutional Tribunal and by the ordinary high courts. On the other hand, the division of responsibility for judicial review of constitutionality between the ordinary and constitutional judiciaries presents significant problems. There are a number of critics of such a solution in Poland, most notably Leszek Garlicki, one of Poland’s foremost lawyers and a former Constitutional Court Justice. He argues that this is “a serious problem which, in the future, may pose one of the basic threats to the role played by the Constitutional Court, and to its relations with other courts”.244 This critique is not without merit. While decentralized review is typical for Common-Law systems, it may function also in a 242

Cf. the viewpoint of a Judge of the Polish Supreme Court and Professor of the University of Warsaw Faculty of Law, talking about the role of his court in the process of European integration and the necessity to replace the “stereotypes and routine generally surviving in the judiciary”. W. Sanetra, “Sąd Najwyższy w systemie wymiaru sprawiedliwości” [The Supreme Court in the System of the Judiciary], 9 (7-8) Przegląd Sądowy (1999), 3-15, at 14.

243

See Chapter 4, Part II.1. supra.

244

Garlicki, op.cit. note 157, 75.

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Continental-Law system. However, this must be subject to a precondition that the Continental judiciary would jettison some outdated Continental dogmas—above all, the classical view concerning (the lack of) precedent. Furthermore, both the Supreme Court and the Constitutional Tribunal must be willing to cooperate in their respective fields of adjudication. That this has not yet been the case in Poland has been amply demonstrated by the frequent conflicts between the supreme tribunals of the ordinary judiciary and the Constitutional Tribunal. As Radoslav Procházka put it: “Although there seems to be hope that the ordinary courts will co-operate rather than compete with the Tribunal, it remains difficult to assess whether there is in fact a firm tendency emerging among them to accept, where applicable, the co-operative engagement of constitutional review.”245

V.4. Centralized versus Decentralized Constitutional Review Revisited The issue of the relationship between the ordinary and constitutional judiciaries is not a peculiar post-Communist one. It seems to be a problem of the long-standing Continental tradition generally. For instance, the introduction of the French Conseil constitutionnel encountered opposition from the Conseil d’État. Its members viewed the justices of the Constitutional Council with suspicion as political appointees, unable to understand the technical nature of administrative law. “Who are they to tell us what the public law is?”,246 asked the most elite judges of France, for whom the existence of the Constitutional Council was rather embarrassing. In the emerging constitutional culture any problem like this, however, has another quality and presents difficulties for a successful transition towards a rule-of-law state and the growth of a new constitutional culture. How is it possible to avoid tensions between the ordinary and constitutional judiciary? Would it be preferable to implement decentralized constitutional review and thus adopt the American model? I do not think so. Herman Schwartz has doubted how far a centralized constitutional judiciary is compatible with the development of the state governed by the rule of law.247 Although Schwartz’s idea would be viewed as utter nonsense for the vast majority of Central European lawyers, his view is not completely without supporters in the region.248 245

Cf. also Procházka, op.cit. note 15, 111.

246

J. Plötner, “Report on France”, in: A.M. Slaughter, A. Stone Sweet, and J.H.H. Weiler (eds), The European Court and National Courts: Doctrine and Jurisprudence (Hart Publishing, Oxford, 1998), 58.

247

H. Schwartz, “The New Courts: An Overview”, 2 E.Eur.Const.Rev. (Spring 1993), 29. Similar ideas have also been expressed by scholars in Central Europe.

248

See J. Blahož, Soudní kontrola ústavnosti / srovnávací pohled [Constitutional Review / Comparative Perspective] (CODEX, Praha, 2001), openly preferring decentralized judicial review over a centralized one.

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There are at least three reasons arguing against the introduction of a system of purely decentralized judicial review. First, the very conception of the traditional civil-law judge as a servant—as a passive machine deducing legal outcomes from statutes, which is still alive and well at many law faculties in Europe and especially in Central Europe—is incompatible with the original American model of decentralized constitutional review and would certainly ensure that it functioned poorly in Europe.249 Secondly, the educational background of the ordinary judges in postCommunist Europe renders them virtually incapable of reconciling the task of the New Constitutionalism with their deep-rooted ideology of judicial decision-making. As it would be impossible (and even were it possible, it would be enormously costly) to replace all ordinary judges with new personnel, one special institution staffed by different sort of judges must be established.250 Considering the examples given above, the Czech example has demonstrated that the idea of creating a special body with the exclusive power of constitutional review was correct.251 However, excessive notions of the exclusivity of judicial review threaten the application of EU law in new EU Member States. The ECJ’s role in interpreting Community law is not an equivalent to that of a constitutional tribunal in a rigidly centralized system; moreover, the current trend of the ECJ’s adjudication seems to give more discretion to national judges.252 Therefore, as decentralized review of national legislation for its 249

For further details, see L. Favoreu, “Constitutional Review in Europe”, in: L. Henkin and A.J. Rosenthal (eds.), Constitutionalism and Rights. The Influence of the United States Constitution Abroad (Columbia University Press, New York, NY, 1990), 48ff.; or Cappelletti, op.cit. note 151, 143. But see Sadurski’s opinion that “[t]he prophecy about the judiciary’s inability to discharge this task was never tested, and became self-fulfilling”. Sadurski, op.cit. note 200, 187.

250

It is even possible to employ Posner’s law and economics theory. In his view: “The judges of this court will have to be competent, ethical and well-paid […] the aggregate resources of both human and physical capital required to equip the court will be modest.” R.A. Posner, “Law and Economics in Common-Law, Civil-Law and Developing Nations”, 17 Ratio Juris (2004), 66, at 78.

251

Moreover, it does not mean that the problem lies only in the exchange of ‘old people’ (in the Czech Republic, for example, the majority of currently sitting judges were appointed after 1989). Rather, as I have been attempting to demonstrate, the problem is based on the old-fashioned ideology of the judicial application of law.

252

T. Tridimas, “Enforcing Community Rights in National Courts: Some Recent Developments”, in: D. O’Keeffe and A. Bavasso (eds.), Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley (Kluwer Law International, The Hague, London, Boston, 2000), 465, at 466, noting that, at the European Court of Justice, there is “the tendency of the case law to leave discretion to national courts in determining whether the national rules of procedure provide a sufficient level of protection for Community rights in issue”. Cf. D. Chalmers, “The Satisfaction

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conformity with European law is ushered in, the current Czecho/Slovak ideology of textual positivism and rigid adherence to the text of domestic law—including unswerving allegiance to centralized judicial review—might suffer a serious backlash. Last but not least, the lack of a formal doctrine of stare decisis in Europe calls rather for a system of centralized review with judicial nullification of law by a court acting as a negative legislator. This was originally Kelsen’s rationale underlying his model for the centralized system.253 Although I agree that this is important, it is not necessarily decisive. In a developed Continental legal system, it is also feasible to have a system in which courts can set aside a law (i.e., refuse to apply it in particular cases where it conflicts with a higher norm) instead of the constitutional court nullifying it; it has, after all, proved successful in the European experience— especially the practice of decentralized enforcement of European law in EU Member States. The mixed model, however, would not work in a system with rival courts which are not disciplined enough to cooperate (rather than to compete). The sort of judicial clashes of undisciplined courts that have occurred in Poland is not unknown in other countries. Perhaps the most famous ‘turf dispute’ relating to judicial review between the constitutional court and the ordinary judiciary has been that of Russia. There, the Constitutional Court—as in Poland—does not have the power to review individual judicial decisions. This has made ordinary judges much stronger in relation to the constitutional judiciary than their counterparts in countries where such a possibility does exist. The logic of the controversy in Russia was quite similar to the one which occurred in Poland. First, doubts existed as to whether there is an obligation to refer a case to the Constitutional Court; second, it was not certain whether supreme court justices would be willing to set aside the law if they had no ‘doubts’ about the law’s constitutionality.254 of Constitutional Rhetoric by the European Judiciary”, paper at the conference “Altneuland: The Constitution of Europe in an American Perspective”, Princeton University, 28-30 April 2004, observing that “in the most distinctive field of EU law, the application of EC law by national courts, it is not vested in a single institution but is dispersed across a judicial community, which is marked out by its decenteredness, the heterogeneity of the judicial and quasi-judicial actors that comprise it, and its autonomy from other administrative actors”. 253

Cf. for a comparison between American centralized and Austrian decentralized system, see Kelsen, op.cit. note 29, 186. Cf. Cappelletti, op.cit. note 151, 141-142.

254

There is a quite rich English-language literature on this topic. See A. Di Gregorio, “The Evolution of Constitutional Justice in Russia: Normative Imprecision and the Conflicting Positions of Legal Doctrine and Case Law in Light of the Constitutional Court Decision of 16 June 1998”, 24(5-6) Review of Central and East European Law

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When observing these conflicts, László Sólyom—a former President of the Hungarian Constitutional Court (1990-1998; and, thereafter, President of Hungary from 2005-2010)—once remarked that the further one travels to the East, the more frequent and dramatic the clashes between the constitutional court and the ordinary judiciary become, caused in part by the wounded pride of supreme courts which are no longer ‘supreme’ within their respective legal systems.255 A reader might realize, however, that a court without self-restraint in its relations vis-à-vis other courts in another judicial hierarchy (either constitutional or, say, European) might have serious problems facing the realities of EU law and relations between national courts and the ECJ, based on mutual respect as expressed in the principle of cooperation rather than on relations of supremacy of one system over the other.256

VI. Learning Abroad: Comparative Constitutionalism and Central European Constitutional Courts Although I am writing with an emphasis on the Central European judiciaries, the picture would not be complete without mention of one of the reasons for the difference between the judicial ideology of Central European ordinary and constitutional courts. i.e., the extent to which Central European constitutional courts have voluntarily borrowed from foreign experience. Central European constitutional tribunals have utilized comparative and international law to a massive extent and, in fact, have developed their new case law and their style of decision-making by adhering to foreign (Western) models. (1998), 387-419; the piece by the (now retired) Justice of the RF Constitutional Court T.G. Morshchakova, “The Competence of the Constitutional Court in Relation to that of Other Courts of the Russian Federation”, 42 St. Louis L.J. (1998), 733; or P. Krug, “Departure from the Centralized Model: The Russian Supreme Court and Constitutional Control of Legislation”, 37 Va. J. Int’l L. (1997), 725. 255

Sólyom, op.cit. note 12, 21ff.

256

See, e.g., A. von Bogdandy, “Doctrine of Principles”, Jean Monnet Working Paper (2003) No.99, available at : “Moreover, loyalty as a legal principle has a direct role in shaping the manifold relationships between the public authorities involved. Especially in view of the lack of hierarchies and because the legal regulations are often only fragmentary, these relationships must be embedded in supplementary duties that secure the law’s effectiveness, yet at the same time ease tensions. The principle of loyalty, usually described by the Court as the principle of cooperation, generates such duties. […] This principle shapes the manifold interactions between the Union institutions and the national authorities in accordance with the needs of the still nameless polity which the Union and the Member States form. Accordingly it can both facilitate unity and protect diversity.”

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For the Central European constitutional justices, this deliberate emphasis on comparative constitutional law257 is an extremely important component of their judicial politics.258 Only through analysis of Western constitutional case law can they can internalize the shift which has occurred in Western legal culture since the World War II. In contrast, comparative law has had essentially no impact on the work of ordinary courts, a circumstance which might even deepen the alienation between both branches of the judiciary. The constitutional courts in the post-Communist countries began their operation by facing an almost total absence of constitutional conventions and tradition.259 As László Sólyom has remarked: “Fortunate countries are blessed with time for organic development—time in which the principles of basic rights can evolve through the interaction of legal science and case law. Doctrines in such countries arise out of detailed analysis in a series of cases. In contrast, a country attempting to form a democratic government after a totalitarian regime does not have the benefits of time. The new Hungarian Constitutional Court, for instance, was confronted with momentous decisions shortly after its creation. Issues relating to abortion, the death penalty, separation of powers, individual rights, and property rights had to be resolved immediately.”260

From the point of view of post-Communist countries, as the Hungarian Constitutional Court has held: “The Constitution has broken with the ‘official’ ideology, which was made the foundation of the state, and also with that rights had to be interpreted in harmony with it [referring to the dismissal of the Communist ideology and the leading role of the Communist Party within society]. […] Constitutional interpretation has to start from the notion of rights, as a neutral category, the boundaries of which are consensually fixed, but as for its content, there are several concepts with different value contents. The essence of a pluralistic society includes the fact that rights can be realized with different value contents, while the whole constitutional system of 257

I use the established term ‘the use of comparative law by courts’, even though it might be considered an exaggeration. It is mostly a poor comparison and a very rudimentary practice, often rule-oriented, which is not worth calling comparative argumentation in a scientific sense. On the differing conceptions of comparative law in the course of time, cf. Reimann, op.cit. note 110, 675-684.

258

This is one of the main arguments of the book by Catherine Dupre, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity (Hart Publishing, Oxford, 2003).

259

A notable Hungarian legal philosopher and comparativist, Csaba Varga, noted that: “In want of constitutional precedents, conventions, and customs, in short, of established practice, the field where the political and legal game is played is rather empty. The transition period now is the dramatic high time for Central and Eastern Europe nations to set the style for their future.” Varga, op.cit. note 62, 75.

260

L. Sólyom, “The Hungarian Constitutional Court and Social Change”, 19 Yale J.Int’l L. (1994), 223, at 227.

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rights remains coherent and operative. […] For interpreting individual fundamental rights, there is a comprehensive, comparative international case law and theoretical opinions at hand so that there is no need to turn directly to ideological or political arguments. Constitutional interpretation of such methodology is protected from the direct enforcement of ideologies by emphasizing formal guarantees, and the elaboration on the value content of individual rights provides protection against the abuse of positivism.”261

Besides these cognitive gaps of the new legal systems, i.e., an almost total absence of constitutional conventions, doctrine and case law,262 there was also a legitimacy gap, which could be felt by many actors of those new systems.263 “In countries beginning their experience with constitutional judicial review, the use of comparative law makes normal what would otherwise appear revolutionary and dramatically new.”264 Some scholars have even argued that recourse to the Western constitutional case law represents a modern substitute for natural law, with a legitimacy of its own.265 Comparative arguments thus often serve as ‘distancing devices’266 with considerable force. The courts use their arguments often in a very strong, principled style. Distancing devices are frequently observed in a value-based approach. The justices can prove through these arguments 261

Minimum Age for Membership of Homosexual-Oriented Organization case, decision 21/1996, 17 May 1996, per Sólyom, J.; (in English) Sólyom and Brunner, op.cit. note 14, 341-342 (my emphasis)).

262

For plenty of colorful illustrations, see E. Stein, Czecho-Slovakia, Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (The University of Michigan Press, Ann Arbor, MI, 1997).

263

Cf. J. Kokott, “From Reception and Transplantation to Convergence of Constitutional Models in the Age of Globalization – with Special Reference to the German Basic Law”, in: C. Starck (ed.), Constitutionalism, Universalism and Democracy – A Comparative Analysis (Nomos, Baden-Baden, 1999), 71ff, at 78 (arguing that “[t]he reception of a concept common in another jurisdiction may lend this concept the appearance of a general principle discovered, and not invented, by the judges”).

264

That is Sujit Choudhry’s view of the South African Constitutional Court. S. Choudhry, “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation”, 74 Ind. L. J. (1999), 819, at 845.

265

C. Dupré, “Importing Human Dignity From German Constitutional Case Law”, in: Halmai, op.cit. note 12, 215ff.

266

Proposed by Christopher McCrudden; see McCrudden, op.cit. note 101, 32 (citing Raz). Joseph Raz understands those distant sources as “devices [the judges] can rely on to settle [constitutional issues] in a way that is independent of the personal tastes of the judges or other officials involved. The need for this distancing is one of the reasons why many judges persist in arguing that at no point did they rely in their decisions on anything other than a conserving interpretation of the law and that there is only one such true interpretation.” J. Raz, “On the Authority and Interpretation of the Constitutions: Some Preliminaries”, in: L. Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge University Press, Cambridge, 1998), 152ff., at 190.

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that they do not arbitrarily choose and formulate rules. Quite the contrary, the rule applied by them is considered to be generally recognized within established democracies, or among the nations which are comparable for some specific purpose, for example having experienced the same problem, such as transition from Communism to democracy. ‘Distancing devices’ seem to have a higher force than simple supportive arguments; in fact, they are arguments having a real normative force of their own. They have played an extremely important role in the justification of a disputed legal issue; they are one of the key reasons used in interpretation of domestic law. The most prominent example of such devices is the jurisprudence of the European Court of Human Rights in Strasbourg. It has a vast impact on all constitutional courts; the character of its arguments is authoritative and sometimes, from the court’s rhetoric, might seem close to being binding. The Slovak Constitutional Court has repeatedly remarked that the opinions of the Strasbourg Court have “supplementary importance for interpretation of the [domestic] constitution”.267 Inspiration by foreign methodology, legal ideology and philosophy of judicial review provides valuable incentives for the new post-Communist constitutional courts.268 In this way, the new constitutional courts have been able to ensure that the newly enacted constitutions would, in principle, follow the Western tradition, which all Central European nations used to share. In this way, they can bring into the post-Communist legal systems new ideas and start the transformation of the outmoded features of the conception of law, necessary in order to harmonize their respective system with their Western European counterparts—not only in a formal but also in a substantive way. Some of the methodological transplants, such as the idea of the constitutionalization of private law, have played a crucial role for the whole legal system in its transformation from the Communist conception of law. After the EU Enlargement of 2004, the courts of the new Member States now fulfill the twofold role of applying both national and European law. The application of European law also entails the duty for judges, wherever possible, to construe their domestic law as being compatible with EU law; when this proves impossible, a duty arises to set aside domestic law found to be in conflict with European law. As a consequence, developments in the next decade will surely test the capacity of judges in the Central European judicial systems to properly apply European law; this process 267

See I. ÚS 49/01, No.56/2001, Zbierka nálezov a uznesení [Collection of Decisions of the Slovak Constitutional Court] (2001), citing prior case law of the court. Cf. Procházka, op.cit. note 15, 257-260.

268

For a discussion (in English) of the Polish examples, see Procházka, op.cit. note 15, 211.

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will inevitably present them with a serious challenge. While proper first evaluations cannot be made until at least a decade has passed after EU Enlargement, important indications are already appearing suggesting the probable outcome of that challenge. The next part of this chapter briefly outlines the application of European law in those new Central European Member States prior to their accession to the EU and, thereafter, deals with important factors which are likely to influence its future application in those countries.

VII. New European Judges VII.1. The Application of EU Law prior to EU Enlargement As part of the first wave of fundamental changes in Central European legal systems in the early 1990s, the major deficiencies of the Communist legal systems were eliminated—especially those rules and institutions which had lost contact with the systems’ Continental roots, some major shortcomings of criminal and civil procedure, etc. These states simultaneously began to enact new laws. A second wave of changes came soon thereafter. In anticipation of joining the EU, the Central European nations were required to Europeanize their legal systems, i.e., to make their laws consistent with the accumulated body of European law, the acquis communautaire. Complaints that the law has been changing too rapidly are heard all over the region.269 In this regard, European directives have had a clearly disruptive effect on national legal orders, questioning old values of legal science and calling for novel answers to old problems.270 All post-Communist countries have, at the same time, joined the Council of Europe and are bound by the decisions of the European Court of Human Rights. The following comment on the problems encountered in Poland, as described by the prominent Polish internationalist, Władysław Czapliński, is relevant (more or less) for all post-Communist law-makers: 269

Attila Harmathy, a former Justice of the Hungarian Constitutional Court (19982007), has estimated that between 1 January 1990 and 31 December 1997, 894 acts of Parliament, 1635 governmental regulations, and 2331 ministerial decrees were passed in Hungary. These rules filled a full 51,104 pages of the official law gazette. In the same period, the Constitutional Court published 501 decisions. A. Harmathy, “Codification in a Period of Transition”, 31 U.C. Davis L. Rev. (1998), 783, 790. For a sophisticated view by a Justice of the Czech Constitutional Court (in 2003: reappointed to the bench; since 2003: Deputy Chief Justice), see P. Holländer, “The Judge Today: A Barrier to a Postmodern Deconstruction or an Industrial Factory for Decision-Making?”, in: Přibáň et al., op.cit. note 129, 77-93.

270

On this phenomenon generally, see Hesselink, op.cit. note 70.

268

The Judiciary in Central and Eastern Europe “[F]rom the substantive point of view the process of adaptation of Polish law to Community law suffers from certain shortcomings. The sponsors of the relevant legislation, followed by the Council of Ministers and the Sejm [the Polish lower house of the Parliament], seem sometimes to have settled for the simplest way out, limiting their activities to (often incorrect and careless) translation of directives. Their nomenclature is often translated word for word, thereby introducing concepts which are not known to the Polish legal system. Alternative options are omitted— even when a Directive requires a choice between them.”271

Of course, similar shortcomings can be seen even in Western European EU Member States.272 However, we must be cognizant of the fact that ‘Europeanization’ has been the second major challenge within a single decade for the rapidly transforming legal systems of post-Communist nations. The mixture of often incompetent drafting of post-Communist law, the immaturity of post-Communist legal systems and judges adhering to textual positivism, has produced a deepening of the post-Communist legal crisis. The likelihood that national judges will correctly and properly apply European law increases if they have had some experience with the application of international law, i.e., a legal system other than their own legal system. With the distinct exception of the Polish judiciary—or, at least, the highest Polish courts273—this has not been the case for Central European ordinary courts. Up until the very end, the Central European socialist regimes kept international law out of their domestic legal systems. The socialist constitutions were silent on the status of international law in their legal orders.274 Furthermore, the relationship between international and domestic law was rarely discussed by socialist legal scholars and was a theoretical issue rather than a practical one. International law came into play only where an ordinary statute explicitly referred to an international treaty and directed that the treaty should be applied in preference to statutory provisions. VII.1.1. Examples of Application The process of Enlargement has had a peculiar nature. Prior to accession in 2004, EU law was not yet formally binding on domestic courts, but the obligation of gradual harmonization with EU law rested on the EU 271

Czapliński, op.cit. note 231, 45, 54.

272

See S. Prechal, Directives in European Community Law: A Study of Directives and Their Enforcement in National Courts (Clarendon Press, Oxford, 1995), 154.

273

See Wyrozumska, op.cit. note 221.

274

See E. Stein, op.cit. note 210, 427, especially: 433. The Polish Constitution of 1952, the Hungarian Constitution of 1949 and the Czechoslovak Constitutions of 1948 and 1960 (the ‘Socialist’ constitution) simply did not address the issue.

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candidates.275 Consequently, the application of EU law in not-yet-Member States presented particularly interesting problems and challenges and called for the understanding of the sophisticated concept of EU law’s persuasive force. The only rational choice was to apply Community law, not only considering the ‘limited law’ of the texts of harmonizing legislation but, also, taking into account Community law in its full meaning. This included the texts of European directives (which had to be transposed into domestic law),276 their reasoning and rationale (which would explain why a particular policy was regulated on the European level), ECJ jurisprudence, and also ideally case law of the EU Member States. This has been nicely demonstrated by Polish examples. The Polish judiciary—or, at least, its highest courts—staffed by many prominent Polish lawyers and academics, has seemed willing to fulfill the mission of Europeanization. In fact, their activity appears to be a logical outcome of their friendly approach to the application of international law and their high aspiration in performing judicial review.277 As the Polish Supreme Administrative Court has put it, candidate states fail properly to fulfill their obligation to harmonize domestic law with EU law not only by incorrectly harmonizing (the problem of the national legislature) but, also, “in cases when the interpretation of internal legal acts by public authorities is contrary to the acquis communautaire”278 (the problem of the national judiciary). It means that—when applying a national rule—a national judge needs to take into account the EU rule corresponding thereto (for instance, a directive which has been implemented by the candidate state) including its interpretation by the ECJ and (ideally) also the practice in the EU Member States. 275

Cf. e.g., Art.69 of the EU-Czech Association Agreement.

276

L. Vékas, “Antizipierte Umsetzung von Verbraucherrichtlinien und das Internationale Privatrecht”, in: J. Basedow et al. (eds.), Festschrift Siehr (TMC Asser Press, The Hague, 2000), 775-795; and id., “Autonome Angleichung an das Gemeinschaftsprivatrecht und das EU-IPR Ungarn”, IPRax (2000), 240-243.

277

Wyrozumska, op.cit. note 5.

278

Decision of the Polish Supreme Administrative Court (SAC) of 13 March 2000 in the Senagpo case; translated in: 24 Polish Yearbook of International Law (1999-2000), 217, 219. The Supreme Administrative Court referred to European tax law “as the additional grounds for its judgment”. See, also, case note by Skrzydło-Tefelska, 24 Polish Yearbook of International Law (1999-2000), 217, 220: “We should welcome with satisfaction the commented judgment of the SAC since it constitutes the proof that Polish courts have properly understood the obligation of harmonization of Polish law with the acquis communautaire, which shall be realized not only by initiatives of legal acts consistent with European law but also by the proper interpretation of the existing provisions.”

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Moreover, the Polish Constitutional Tribunal has proclaimed this to be a general rule of construction under its domestic law: “Of course, EU law has no binding force in Poland. The Constitutional Tribunal wishes, however, to emphasize the provisions of Article 68 and Article 69 of the [Polish Association Agreement]. […] Poland is thereby obliged to use ‘its best endeavours to ensure that future legislation is compatible with Community legislation’ […] The Constitutional Tribunal holds that the obligation to ensure compatibility of legislation (borne, above all, by the parliament and government) results also in the obligation to interpret the existing legislation in such a way as to ensure the greatest possible degree of such compatibility.”279

Similarly, the Czech antitrust authority—staffed by young lawyers, many of whom have the benefit of foreign legal education and knowledge of foreign languages—has taken into account EU law in almost every important case. This practice was approved by the Czech Supreme Court in the Skoda Auto case. In that case, the appellant, the most important Czech company, challenged the decision of the antitrust authority with the argument that EU law was not a binding source of law in the national legal system and, therefore, could not be taken into consideration in the interpretation of the domestic law. The High Court rejected this claim, emphasizing the international links between national antitrust laws: “The protection of free trade is specific in the way that national law is often not sufficient, and therefore is often enriched by the application of rules used in the countries with a long tradition of antitrust law (Germany, the United States). For that matter [the Czech Antitrust Law of 1991] received the basic ideas of the Treaty of Rome, particularly already mentioned articles 85, 86 and 92; this was from the perspective of harmonization of the legal systems of the European Communities and the Czech Republic an absolute necessity.”280

Subsequently, the High Court concluded that it was not an error of law for the public authority to interpret Czech antitrust law consistently with the case law of the European Court of Justice and with Commission decisions. A decision of the Czech Constitutional Court has affirmed this approach, emphasizing that both the Treaty of Rome and the EU Treaty derive from the same values and principles as Czech constitutional law; therefore, the interpretation of European antitrust law by European bodies is valuable for the interpretation of the corresponding Czech rules.281 Both courts have understood the difference between a source of law that is merely persuasive (interpretation consistent with European law) and 279

Gender Equality in the Civil Service case, decision K. 15/97, OTK ZU (1997) No.19 item 380; see (in English) 5 E.Eur. Case Rep. of Const. L. (1998), 271, at 284 (my emphasis).

280

Decision of the Olomouc High Court of 14 November 1996, published in: 5 (9) Právní rozhledy [Legal Views] (1997), 484.

281

Re Skoda Auto, 8 ÚS (1998), 149 (in Czech).

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a source that is binding (which would be the case only if the EU law had direct effect in an EU candidate country).282 The Constitutional Court has emphasized the value of this Eurofriendly approach—above all, in the review of the constitutionality of laws. In the case dealing with the competence of the national government to impose a quota for producers of milk, a group of Senators had questioned the validity of the law. The Constitutional Court rejected their claim by reasoning that, inter alia, similar rules were also permitted under EU law and GATT; in addition, the regulation was a part of the approximation process with EU law. The petitioners, however, argued that European law could not be applied because it was not binding (note here a tension between binding and persuasive sources of law, typical for post-Communist legal thinkers, often unable to realize the importance of the latter sources). The Court rebuffed this idea—emphasizing the existence of general principles of law, common to all EU Member States. The content of these principles is derived from common European values; the general principles imbue with content the abstract concept of the state governed by the rule of law, which includes human rights. The Constitutional Court must apply these principles; thus, it must follow European legal culture and its constitutional traditions. “Primary Community law is not foreign law for the Constitutional Court, but to a wide degree it penetrates into the Court’s decision making—particularly in the form of general principles of European law.”283 In other words, the Czech Constitutional Court rejected the conception of law as composed merely of binding sources of law, thus allowing for a broader conception of law. VII.1.2. Examples of Non-Application I have shown that, in post-Communist legal culture, textual positivism prevails. Deeply rooted legislative optimism has produced an atmosphere 282

The inability to distinguish between these two concepts is nicely illustrated by the analysis by Vladimir Týč, who considers the decision of the Czech Constitutional Court as though it accorded the EC Treaty direct effect. See V. Týč, “Czech Republic”, in: A. Ott and K. Inglis (eds.), Handbook on European Enlargement. A Commentary on the Enlargement Process (TMC Asser Press, The Hague, 2001), at 229, 231.

283

Milk Quota case, 24 ÚS (2001) No.410; (in English) available at . Under European law it would be unlikely to consider the milk quotas as an example of the general principles of European law. However, it is not entirely clear which principles would, according to the Czech Court, qualify: whether the possibility to impose production quotas themselves or the right to engage in free enterprise (as this latter right resides at the core of European legal culture, the existence of production quotas within the EU legal order would lead to the conclusion that the milk quotas would not constitute a breach of this right).

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where ordinary judges and lawyers generally overemphasize the impact of European legal transplants made by the legislature on the one hand, while they seriously understate the judicial role in that process on the other. This is why one should not be surprised that European legal transplants operate often in a very different way than they do in the donor countries. In systems where persuasive arguments are not recognized as relevant, a sensible harmonization is not likely to succeed. This path of ‘limited law’ was followed by both supreme courts of the former Czechoslovakia. A typical example is a 1999 decision of the Slovak Supreme Court; there, the Court was requested by the parties to consider the fact that the interpretation of the law employed by the lower courts was contrary to the EU directive which the law was intended to transpose. The Court openly refused to consider EU law as an argumentative tool to interpret domestic law in a Euro-friendly way. The Court failed to distinguish between authoritative and persuasive arguments because, in the world of limited law, only binding sources exist; anything else is not the law and cannot be taken into consideration by a court. In the Slovak Supreme Court’s view, “considering the current stage of EU integration”, an argument based upon a European directive was irrelevant.284 Its Czech counterpart provides a similar example. In a 2000 decision dealing with the validity of an agreement between a consumer and a distributor of expensive pottery, the consumer argued that the agreement was contrary to “good morals”, since the distributor had sold him exceptionally expensive pottery under extremely harsh conditions. The consumer also had argued with reference to the law of Western countries and European directives and had urged the courts to take these into account, as Western European countries—in contrast to the Czech Republic—have had a long experience in dealing with consumer agreements. None of the three Czech courts dealing with the issue accepted this invitation to engage in a comparative analysis. The Supreme Court based its decision on quasi-liberal rhetoric of the freedom of contract, more reminiscent of the ideas governing European thinking in the mid-nineteenth century than the twentieth-century discourse governed by the widely-accepted necessity of protecting the weaker party. The Supreme Court did not consider comparative arguments drawing upon European law as capable of filling the general clauses of “good faith” and “good morals”. Deciding as the court of final instance, it conceived of the defendant’s arguments as references to binding sources. Here is the reasoning which it opined: 284

The decision of 25 August 1999 has been published in: 4 Zbierka stanovísk (2000) No.76, 55.

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“[…] validity of the agreement made between the parties on 31 August 1993 must be decided according to the then valid law, as both lower courts did. In contrast, laws and directives valid in the countries of the European Community are not applicable, as the Czech Republic was not (and still is not) a member of the Community, and that is why the Czech Republic is not bound by these laws. The binding force of the rules to which the appellant refers cannot be inferred from any provision of the [the Czech Association Agreement], as the court of appeal concluded. The question of harmonization of legal practice of the Czech Republic with legal practice of the European Community is gaining in importance, but this cannot change anything in the outcome of this case.”285

Textual positivism, with its severe “binding versus non-binding” dichotomy, thereby relegated to nothingness—at least prior to Enlargement—the role of European law. To put it in blunt terms, European law can only be relevant once it has become binding. Because it is obviously not binding in a not-yet-EU Member State, until the Enlargement was completed, it was beyond the view of the ordinary judiciary. In the view of Czech and Slovak judges, candidate countries were implementing only texts; in interpreting them, lawyers could consider nothing but these texts.286 This ‘anti-European’ approach—as well as the overall ‘isolationist’ practice of the Czech ordinary courts—has been severely criticized by a few exceptional ordinary judges287 as well as by some politicians. In 2002, the then Czech Minister of Justice (who was later to become Chief Justice of the Constitutional Court for the term 2003/2013) noted that few were fully aware of the responsibility of ordinary judges for dealing with the bulk of international law and that—after joining the EU—it would be up to them to ensure the priority of EU law over national law.288

285

Decision of the Czech Supreme Court of 12 December 2000, 25 Cdo 314/99 (unpublished but available at the Supreme Court’s website ).

286

On this, in more detail, see Z. Kühn, “The Application of European Law in Central European Candidate Countries”, 28 E. L. Rev. (2003), 551.

287

See the commentary of Judge Boris Filemon of the Brno Regional Court: “It would serve the development of specialized legal sub-branches of the copyright protection and the protection of industrial rights, if the Czech judiciary were more connected to ‘abroad’ (following foreign up-to-date legal theory and case law) and overcame the ‘Czech’ isolationist way of ignoring the importance of comparative law, as well as censorship of the editors of the collection of judicial judgments. [… ] That is why we are attempting at least in the areas with applicable international treaties […] to use foreign commentaries and case law in the original (e.g., from the Internet) or from the few available Czech translations.” Commentary of B. Filemon on judgment sign. 11 Cms 231/96, in: Jurisprudence, Vynutitelnost práva a právní praxe [The Enforceability of Law and Legal Practice], (2000) No.4-5, 34.

288

See an interview with Pavel Rychetský in Právo (25 September 2002), 1.

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VII.2. Central European Judges as New “European” Judges VII.2.1. The Application of European Law: General Maxims Since 1 May 2004, European Union law has had binding effect in the new member countries and takes precedence over their domestic law. Post-Communist judges have thus entered the realm of an important and substantial field of law made also by the judges of the European Court of Justice in Luxembourg. The ECJ’s role is to ensure, as far as possible, the uniform application of Community law on the basis of preliminary references sent by national courts.289 The uniform application of European law is a fundamental requirement of the Community legal order.290 The relationship between the ECJ and national courts is based on the principle of cooperation rather than on a hierarchical structure.291 Article 234, the basis of that cooperation, “entails a division of duties between the national courts and the Court of Justice in the interest of the proper application and uniform interpretation of Community law throughout all the Member States”, as the ECJ has emphasized numerous times.292 Although the ECJ has never explicitly stated as such, it is clear from its case law that its decisions form something akin to binding precedent,293 though the rhetoric of European precedent does not correspond completely to Common-Law ideals.294 Considering the nature of the ECJ’s activity, there is no other way but to recognize its decisions in a quality 289

See EC Treaty Art.234 (ex Art.177), as construed by the ECJ in case C-166/73, Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, ECR (1974), 33 para. 2: “Article 177 is essential for the preservation of the community character of the law established by the treaty and has the object of ensuring that in all circumstances this law is the same in all states of the community.”

290

See joined cases C-143/88 and C-92/89 Zuckerfabrik, ECR I-415 (1991), para. 26; or joined cases C-46 and C-48/93 Brasserie du Pêcheur/Factortame (No.3), ECR I-1029 (1996), para. 33.

291

Which the ECJ proclaimed as early as 1964 in the ‘foundational’ case C-6/64, Costa v. ENEL ECR (1964), 614. See H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Communities (Kluwer Law and Taxation Publishers, Deventer, The Netherlands, Boston, MA, 5th ed. 1992), 394; and K. Lenaerts, “Form and Substance of the Preliminary Rulings Procedure”, in: D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol.II (Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 1994), 355.

292

E.g., case C-244/80 Foglia v. Novello (No.2), ECR (1981), 3045, para. 14.

293

See, clearly, case C-224/01 Köbler, ECR I-10239 (2003), para. 56: state liability for a breach of Community law arises when the decision of the national court concerned is “in manifest breach of the case law of the Court in that matter”.

294

See J.J. Barceló, “Precedent in European Community Law”, in: MacCormick and Summers, op.cit. note 37,407.

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of precedent for the national courts, notwithstanding different national orthodoxies—especially in Continental legal systems.295 The national courts, however, play a rather important role in making European law. Unlike the original idea of the relationship between the ECJ and the national judiciary—in which the former was supposed only to interpret and the latter only to apply Community law—it is now clear that the role of national judges is far more important than that. In fact, when applying Community law, judges of national courts must at the same time also act in their capacity as European judges; they have to enforce European regulations and directives and have to decide cases with the goal of an integrated Europe in mind.296 A major problem that arises in analyzing the application of European law by national judges lies, however, in the fact that “the correct and loyal application of substantive EC law by the national courts is all too often presumed with little verification as to whether this is actually the case in practice”.297 As the following lines will show, it is very likely that—in light of the 2004 Enlargement—the divide between principles stated in the case law of the ECJ, on the one hand, and the real national practice of the Member States, on the other hand, will deepen.298 VII.2.2. Constitutional Courts Considering the nature of the post-Communist judiciaries, it was unlikely that they would manifest open hostility or refuse to accept the leading role exercised by the ECJ in the field of European law. At most, national con295

As early as 1985, the Constitutional Court of Italy had emphasized that the ECJ’s case law is binding on Italian national authorities as part of directly applicable Community law. Specification of the meaning of Community law by declaratory judgment of the ECJ has the same direct effect in Italian law as the interpreted provision itself. See decision No.113 of 23 April 1985, 68 Rac.uff. 775 (1985), 1985 Giur. cost. 694, quoted by: P. Mengozzi, European Community Law. From Common Market to European Union (Graham and Trotman/Martinus Nijhoff, London, Dordrecht/Boston, 1992), 70. Similarly, the German Federal Constitutional Court has concluded that if the German national court declines to follow the interpretation of Community law given by the ECJ, it is bound to refer the issue again to the ECJ according to the procedure found in EEC Treat Art.177 para. 3 (now EC Treaty Art.234 para. 3).

296

That is the reason prominent scholars claim that there are not just two European courts but, in fact, thousands of them—dispersed throughout the territory of the EU. This is the primary idea of Slaughter et al., op.cit. note 246.

297

M.A. Jarvis, The Application of EC Law by National Courts: The Free Movement of Goods (Oxford University Press, Oxford, 1998), 439.

298

For the most recent update on this problem, see a volume published in mid-2010, reflecting the realities of five years after the 2004 Enlargement: A. Lazowski (ed.), The Application of EU Law in the New Member States: Brave New World (TMC Asser Press, The Hague, 2010).

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stitutional courts—viewing themselves primarily as guardians of national constitutions and following the lead of the German archetype—might pursue their national judicial politics, show themselves as the ultimate guardians of national sovereignty and delineate the limits of the ECJ’s competences in the way the German Federal Constitutional Court did in its Solange II299 and Maastricht300 decisions. The first constitutional decisions from new Central European Member States seem to be consistent with this prediction. A good example might be drawn against the backdrop of testing the constitutionality of the European Arrest Warrant (EAW) in Central Europe.301 In the first episode of the EAW saga in 2005, the Polish Constitutional Tribunal declared the implementation of the EAW unconstitutional in Poland insofar as it allows the surrender of Polish nationals.302 Poland had implemented303 the EAW despite Article 55 of the Polish Constitution which explicitly prohibits the extradition of Polish nationals (“Extradi299

See BVerfGE 73, 339 (1986), Solange II. Wojciech Sadurski has remarked that it would be ironic, “at today’s stage of the development of EU law”, were the constitutional courts to ‘replicate’ the Solange I doctrine, now of course outdated. See W. Sadurski, “Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe”, 10 Eur. L.J. (2004) 371, 392. Even a development such as this, however, cannot be completely excluded, as one should not overestimate the expertise in EU law of constitutional court justices (or their advisers). In contrast to most Central European courts, preparations for the modified role of the constitutional court after the Accession seem to be generous in Poland. On the Polish Constitutional Tribunal’s website, all major decisions of national constitutional courts on the relationship between EU and national constitutional law have been translated and posted. See (visited on 14 February 2005).

300

See BVerfGE (1993), 89, 155, Maastricht.

301

See the Council Framework Decision on the European Arrest Warrant (and extradition procedures among Member States) 2002/584/JHA, OJ L190/1 of 18 July 2002.

302

Case P 1/05, quoted according to the Polish text published in: OTK ZU (2005) ser A, No.4 item 42 (unless specifically referred to, the English summary available on the Tribunal’s website). Cf case notes (in Polish) in: Państwo i Prawo (2005) No.9; (in English) in: A. Łazowski, “Constitutional Tribunal on the Surrender of Polish Citizens Under the European Arrest Warrant. Decision of 27 April 2005”, 1 European Constitutional Law Review (2005), 569; and A. Wyrozumska, “Some Comments on the Judgments of the Polish Constitutional Tribunal on the EU and on the Implementation of the European Arrest Warrant”, 27 Polish Yearbook of International Law (2004-2005), 7; or an analysis of both the German and Polish decision by J. Komárek, “European Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony”, Jean Monnet Working Paper (2005) No.10; and Grzegorz J. Wąsiewski, “Constitutional Jurisdiction in Poland and Germany: A Note”, 32(4) Review of Central and East European Law (2007), 443-466, especially: 461ff. on the EAW.

303

See the amendment to the Polish Criminal Procedure Code of 18 May 2004, Dz.U. (2004) No.69 item 626.

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tion of a Polish national is prohibited.”). Although expert opinion on this matter was divided,304 the constitutional text itself was clear and allowed no exception to the prohibition of the extradition of nationals. The Polish Tribunal did not try to remake its constitution by judicial fiat; at the same time, however, it delayed the effects of its opinion in order not to breach EU law requirements. The Tribunal took pains to justify that although the extradition of nationals is unconstitutional, it must be nevertheless applied until the Constitution is amended and gave the Polish Parliament eighteen months for this amendment; if no amendment was made within this period, the decision would take effect and no extradition of nationals would be allowed. The argument was based on the constitutional provision which declares that Poland obeys international law305 and, also, on Polish obligations to the EU. The Court dedicated a substantial portion of its opinion to the issue306 which might be also explained by earlier frequent clashes between the ordinary judiciary and the constitutional judiciary.307 The Euro-friendly position of the Polish justices could be seen throughout the judgment. The Tribunal repeated several times that the EAW was a measure of utmost importance308 and deserved “maximum priority by the Polish legislature”.309 On the other hand, although it is possible to notice “the general trend of the decline of the role which state citizenship has in determining the legal status of an individual”, it is not up to the justices to change the constitution through creative ‘dynamic interpretation’, especially facing a strict and unconditional prohibition in Article 55 (1) of the Polish Constitution.310 In its judgments on the same issue, on 3 May 2006 the Czech Constitutional Court had rejected a proposal filed by opposition parliamentarians to annul the Czech implementation of the EAW. The parliamentarians of the conservative Civic Democratic Party (ODS) had argued that the 304

Cf. (in English) the report by Agnieszka Grzelak at the XXI FIDE Congress, Dublin, June 2004, part C, point 3, available at (claiming that the majority of Polish scholars did not consider it unconstitutional).

305

Art.9 of the Polish Constitution.

306

See part 5 of the decision quoted in: op.cit. note 302.

307

Wyrozumska, op.cit. note 221.

308

The decision quoted in: op.cit. note 302, part 4.3.

309

Ibid., part 5.9.

310

Ibid., part 4.3. The Constitutional Tribunal reminded us that, during the drafting of the Constitution, the opinion that “the extradition of nationals is the most extreme limitation of state sovereignty” effectively barred any exception to the constitutional ban on extradition. Thus, doctrinal arguments calling for the balancing of Art.55 against other constitutional provisions were ultimately refused. Ibid., parts 4.1, 4.2.

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possibility to surrender Czech citizens abroad under the EAW was in conflict with Article 14 (4) of the Czech Charter of Fundamental Rights, according to which no citizen may be forced to leave his homeland. In the petitioners’ view, this prohibition laid down in this article was clear and unconditional.311 The Czech Constitutional Court dealt, in detail, with the rationale of the prohibition of extradition of nationals. First, the Court explained the history of the basic right of Czech citizens “not to be forced to leave their homeland”.312 This prohibition reflects, in the Court’s opinion, “the experience with the crimes of the Communist regime”, namely with the operation “in which the Communist regime forced troublesome persons to leave the Republic”. It seems that the Czech provision was never concerned with extradition, the Court explained. Still, the question whether the original meaning should be expanded cannot be decided solely by reference to “the intention of the constitutional framers”.313 For this reason, the Court sought to determine the objective of Article 14 (4) against the backdrop of “contemporary life and institutions at the start of the twenty-first century”. The Court emphasised that in view of the low mobility of Europe’s inhabitants at the beginning of the nineteenth century, “as well as the very limited degree of cooperation among the then European states, [extradition] did not even constitute much of a weighty issue”. Because the modern concept of extradition emerged as late as in the nineteenth century, many of its features still carry signs of that era.314 The Court concluded its purposive approach by contrasting the nineteenth century with “the current period […] connected with an extraordinarily high mobility of people, ever-increasing international cooperation and growing confidence among the democratic states of the EU […]”.315 In the Court’s logic, the EAW reflects the new rights of Czech citizens who have also become European citizens, which brings them also new responsibilities of the twenty-first century, nonexistent in the old Europe of closed borders.316 On the other hand, the Court reserved the right to step in and 311

Decision of the Czech Constitutional Court of 3 May 2006, published in: Sb. (2006) No.434; the full English translation (also used in this volume) is available at .

312

Art.14 para. 4 of the Charter of Fundamental Rights.

313

The Czech EAW case (op.cit. note 311) paras. 66-67: the intention of the constitutional framers is not a decisive argument “where it is based on historical experience, particularly in the circumstance where historical memory fades and cannot be passed on to future generations, because they are bound up with the experience of their own times”.

314

Ibid., paras. 68-69.

315

Ibid., para. 70.

316

“If Czech citizens enjoy certain advantages, connected with the status of EU citizen-

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protect Czech citizens against some extreme (though unlikely) forms of application of the EAW.317 Even more interestingly, the Czech Constitutional Court had rendered two important decisions with regards to the Lisbon Treaty. The Court addressed, among other issues, the problem of sovereignty. It rejected the argument of the petitioners (the Czech Senate) that sovereignty means only “independence of the state power from any other power, both externally (in foreign relations), and in internal matters”: “Sovereignty is (probably) no longer understood like this in any traditional democratic country, and stricto sensu no country, including the USA, would fulfill the elements of sovereignty. […] if we understood sovereignty in the traditional concept, any international obligation deprives the state of part of its sovereignty. Therefore, in practice sovereignty should not be understood only as a rigid legal concept, but also as a concept with a practical, moral, and existential dimension. In practice, national sovereignty is always limited by objective conditions, including the reactions of neighboring states. Under these conditions, national sovereignty means above all a legitimate government that has at its disposal the formal power to choose between available alternatives, and not to pursue an alternative dictated by a foreign power. In other words, for a nation-state just as for an individual within a society, practical freedom means being an actor, not an object. For a state that is in a tightly mutually interdependent system, practical sovereignty consists in being understood as a player to whom neighboring states listen, with whom they actively negotiate, and whose national interests are taken into consideration.”318

Those decisions are even more important because they challenge the old entrenched conceptions of the post-Communist region (because of this they have been often criticized). While pluralist conceptions of the interactions between the European and the national legal orders was rising in ship, then naturally in this context a certain degree of responsibility must be accepted along with these advantages. The investigation and suppression of criminality which takes place in the European area, cannot be successfully accomplished within the framework of individual Member States, but requires extensive international cooperation. The results of this cooperation is the replacement of the previous procedures for the extradition of persons suspected of criminal acts by new and more effective mechanisms, reflecting the life and institutions of the twenty-first Century”, ibid., para. 71 (emphasis added). 317

See, in more detail, Z. Kühn, “The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/Acceptance: The EAW Saga as Narrated by the Constitutional Judiciary in Poland, Germany, and the Czech Republic”, 3 Croatian Yearbook of European Law & Policy (2007), 99-134.

318

Decision Pl. ÚS 19/08 of the Czech Constitutional Court of 26 November 2008, Lisbon Treaty I case, para. 105 (quoted according to the English translation available at ). In more detail, see P. Briza, “The Czech Republic: The Constitutional Court on the Lisbon Treaty Decision of the Czech Constitutional Court of 26 November 2008”, European Constitutional Law Review (2008), 143-164.

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Western Europe,319 post-Communist Europe returned to the Kelsenian concept of the legal system as a pyramid. While for Western Europeans it is an old-fashioned concept, for Central and Eastern Europeans this concept holds the charm of something precious lost and recently rediscovered. In Communist Europe, the very paradigm of Continental legal thinking—the classical hierarchy of legal sources—in fact had disappeared; a unified legal order comprising the enumerated sources of law prevailed only on paper and was displaced in genuine significance by a multitude of decrees of a very different character, some of them which were not even promulgated in the official gazettes. That is one of the reasons post-Communist lawyers in the new Member States adhere so adamantly to the classical Kelsenian paradigm of the legal system. A very interesting development can be expected with regard to the relation between national ordinary judges and constitutional courts in the application of European Community law. In Hungary and Poland, this problem is not of much interest, as there is no direct link—via the constitutional complaint procedure—between decisions of ordinary judiciaries and national constitutional courts. However, in the Czech Republic, Slovakia, and Slovenia, the possibility exists for lodging a constitutional complaint against decisions of the ordinary judiciary, which provides the national constitutional courts the impetus to stake out their positions in relation to European law. It is possible to expect that the less qualified the ordinary judiciary is and the less willing or capable the national ordinary high courts are to enforce Community law, the greater the pressure will be on the national constitutional courts to protect at least fundamental principles of the application of EU law. That is why the Czech Constitutional Court (similarly to its counterparts in Germany and Austria) has developed a remedy against the failure of national courts of last resort to refer issues to the ECJ. The remedy has been found in a constitutional complaint against such decisions, where the plaintiffs would base their arguments on the breach of the right to their lawful judge.320

319

See, e.g., the works on ‘multilevel constitutionalism’ by I. Pernice, “Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-making Revisited?”, 36 C.M.L.Rev. (1999), 703; and id., “Multilevel Constitutionalism in the European Union”, 27 ELR (2002), 511; also, the concept of ‘legal pluralism’ as defended by Italian theorists such as: M. La Torre, “Legal Pluralism as Evolutionary Achievement of Community Law”, 12 Ratio Juris (1999), 182.

320

Decision II. ÚS 1009/08 of the Czech Constitutional Court of 8 January 2009 (Pfizer case). This was predicted by M. Bobek, Porušení povinnosti zahájit řízení o předběžné otázce podle článku 234(3) SES [Violation of the Obligation to Initiate a Proceeding on a Preliminary Question Pursuant to EC Treaty Art.234(3)] (C.H. Beck, Praha, 2004), 46-66.

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VII.2.3. Ordinary Courts I: Textual Positivism and European Law The real problem of ordinary courts after EU Enlargement seems to be rather a lack of knowledge and ability than of an open defiance or a flouting of their new duties. Obvious problems are presented by the excessive reliance of post-Communist lawyers on a literalist (or textualist) reading of law, their ignorance of the underlying purpose of the law and their inability to apply abstract legal principles. This is the case because the typical division of labor in post-Communist countries seems to be overly centralized. By centralization, I mean the concentration of the most important issues in a single judicial body, situated outside the judiciary proper. In the post-Communist division of labor, the ordinary—judiciary—‘the judiciary proper’—is entrusted with applying ordinary or ‘simple’ law (‘einfaches Recht’) in a rather textualist way, whereas constitutional courts (situated outside the judiciary proper) are the only bodies which feel empowered to deal with abstract principles, human rights, constitutional law, and international law—although the level of this centralization varies (the most extreme example seems to be Slovakia, the least visible Poland). The general perception of ordinary judges—as those who should apply the (domestic) law in a textualist fashion—constitutes a major obstacle to the application of European law, a task which by its very nature is decentralized (as one of the European constitutional principles provides).321 For instance, one might note the completely divergent attitude towards teleological (purposive) argumentation manifested by Western European judges and the ECJ, on the one hand, and by their new Central European colleagues, on the other. The doctrine of useful effect of Community law (‘effet utile’), the teleological argument par excellence, stands at the very root of Community law.322 Unless Central European legal and judicial 321

Case C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (II), ECR (1978), 629. Cf. V. Ferreres Comella, “The European Model of Constitutional Review of Legislation: Toward Decentralization?”, 2 Int’l J. of Constitutional L. (2004), 461, who claims that the centralized model of constitutional review seems to be in crisis, facing both internal and external problems and cf. supra note 201. On the other hand, it must be acknowledged that the application of the primacy of EU law without the cooperation of national constitutional courts troubles Western European judges as well. Cf. recently, e.g., case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG of 19 January 2010 (available at ).

322

See case C-41/74 Yvonne van Duyn v. Home Office, ECR (1997), 1337, para. 12: “[...] where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law. Article 177, which empowers national courts to refer

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methodology, which approaches the ideal of mechanical jurisprudence, is radically modified and made more open to teleological argumentation, the application of Community law may face serious obstacles from lawyers unable to reason about the law’s rationale and purpose. In addition, the use of legal principles can also be problematic. The more complicated and structured the legal system, the more important the role played by general principles of law, which provide the law with inner rationality and coherence. General principles of law—such as the principle of proportionality—might also help to structure the legal discourse when a judge exercises judicial discretion. A judge adhering to the theory of limited law would have serious problems when applying European doctrines, which prescribe her to apply and balance abstract principles and other standards. The increased interest in legal principles that has been shown in postCommunist legal scholarship can be explained also by this phenomenon. For instance, the renowned Hungarian scholar, Csaba Varga, has remarked that the transformation of a deformed ‘socialist normativism’ into a complex legal system of a modern democratic society leads to a fundamental revision in the traditionally conceived relationship between law and statute (Recht und Gesetz). In his view, it is only through legal principles that the legal order can be sustained as a ‘living entity’. The application of legal principles and other standards can turn what is prima facie a legal order characterized by conflicting rules into a rational system, able to respond appropriately to any individual legal question. This added element can introduce into the legal system a dynamic factor, on the basis of which law might be formed in a continual way.323 VII.2.4. Textual Positivism and European Law: Case Scenario Let me give several examples of the use of legal principles and policies in the application of European law. For instance, Article 30 of the EC Treaty (now Article 36 Treaty on the Functioning of the European Union), as read by the ECJ,324 requires an extensive proportionality analysis of the justification for quantitative restrictions on imports and exports and all measures to the Court questions concerning the validity and interpretation of all acts of the Community institutions, without distinction, implies furthermore that these acts may be invoked by individuals in the national courts. It is necessary to examine, in every case, whether the nature, general scheme and wording of the provisions in question are capable of having direct effects on the relations between Member States and individuals.” See J. Bengoetxea, N. MacCormick, and L.M. Soriano, “Integration and Integrity in the Legal Reasoning of the European Court of Justice”, in: G. de Búrca and J. Weiler (eds.),The European Court of Justice (Oxford University Press, Oxford, 2001), 43-86. 323

See Varga, op.cit. note 62, 86.

324

However, see the description of this case law in joined cases C-267 and C-268/91 Keck and Mithouard, ECR I-6097 (1993).

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having an equivalent effect.325 Considering the fact that post-Communist judiciaries are not experienced in the use of such policy principles, such as the principle of proportionality, one might expect them to face even more serious obstacles than those already encountered by the judiciaries of the old Member States.326 The case law concerning gender equality and issues of indirect discrimination provides another example. In this area as well, the ECJ usually only lays down abstract principles to be applied by national judges, who are invited to use domestic policies and values. The Seymour-Smith case is a good example of this trend.327 The dispute in the main proceedings arose in relation to two employees who were dismissed by their employers before they had completed two years’ employment. As they had not yet satisfied the two-year requirement, they did not enjoy the right ‘not to be unfairly dismissed’, recognized under United Kingdom legislation (which they would have enjoyed, had they been employed for at least two years). One of the questions referred to the ECJ was whether the fact that fewer women (68.9%) than men (77.4%) satisfied this two-year requirement entails indirect discriminatory treatment of women. In its response, the ECJ deliberately left the national judge a substantial margin of appreciation, allowing her to balance all relevant circumstances under national law. The Court ruled that—in order to establish whether a measure adopted by a Member State has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of Article 119 (currently Art.143) of the Treaty—the national court must determine whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfill the requirement imposed by that measure.328 However, that measure still does not constitute indirect sex discrimination if it is justified by objective factors unrelated to any discrimination based on sex: the Member State, as the author of the allegedly discriminatory rule, has to show that the rule in question reflects a legitimate aim of its social policy, that such aim is unrelated to any discrimination based on sex, and 325

See M.P. Maduro, We The Court. The European Court of Justice and the European Economic Constitution: A Critical Reading of Article 30 of the EC Treaty (Hart Publishing, Oxford, 1998).

326

On these difficulties cf. e.g., Jarvis, op.cit. note 297, 435.

327

Case C-167/97, Regina v. Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez, ECR I-623 (1999). In this case, the House of Lords referred to the Court of Justice for a preliminary-ruling question on the interpretation of Art.119 of the Treaty and the provisions of Council Directive 76/207/EEC of 9 February 1976.

328

Ibid., para. 65.

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that it could reasonably consider that the means chosen were appropriate for the attainment of this aim.329 The Seymour-Smith case has had an interesting finale. Back on the national level, the House of Lords adjudicated that—on the basis of six years of statistics and a persistence of figures—a considerably smaller percentage of women than men had been affected by the law. However, it was still not indirect discrimination, as the law had been promulgated in order to increase employment and to reduce the unwillingness of employers to take on more employees. Thus, the court gave its government a wide margin of appreciation. However, the court concluded by holding that the government must take reasonable steps to monitor a law that has such disparate impact.330 Requirements such as those announced in the Seymour-Smith case present real challenges for post-Communist judiciaries and their style of legal reasoning, not only in view of the judiciary’s inexperience in the open balancing of divergent interests but, also, because of the social purity of Communist and post-Communist legal discourse, where the use of statistics in judicial reasoning is considered heresy against orthodox ‘pure’ legal science. Yet it is crucial for post-Communist judges to understand the reasons behind this self-restraint on the part of the ECJ. Providing leeway to the national courts is important and, in fact, legitimizes the ECJ’s activity. The national court, and not the ECJ, is the proper forum to balance competing needs of the domestic economy as well as domestic values, on the one hand, and the fundamental principles of EU law on the other.331 Bearing in mind both the special needs of post-Communist economies and the important values behind the ECJ’s case law (equality between men and women, for instance), it is very important for them sensitively to balance these competing considerations. An excessively one329

Ibid., para. 77. Cf. para. 76: “Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed rule is unrelated to any discrimination based on sex nor to provide evidence on the basis of which it could reasonably be considered that the means chosen were suitable for achieving that aim.”

330

S. Fredman, Discrimination Law (Oxford University Press, Oxford, 2002), 114.

331

As Ami Barav noted, the Europeanization of the national judiciaries results in their substantial empowerment. A. Barav, “Omnipotent Courts”, in: Curtin and Heukels, op.cit. note 291, 265. Not all Western judges enjoy the new powers that they have acquired in the area of application of Community law. Some English judges have hesitated, or even have openly protested, the use of this power in some delicate matters of national policies. Cf. ibid., 300, quoting Hoffman J, according to whom: “In applying the Treaty as interpreted by the Court, the national court has to be aware of another division of powers: not between European and national jurisdiction, but between legislature and judiciary.”

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sided jurisprudence can harm either the national economy or individual rights; a too chaotic jurisprudence will hurt both. Anti-discrimination law indeed troubles post-Communist judges. In a 2009 case relating to age discrimination by the Czech government, the Czech Constitutional Court stepped in and directed lower-court judges to use meaningful statistics in order to determine whether the plaintiff had really been dismissed because of his age. The plaintiff who was close to 60 had argued that a new minister of the Czech government staffed his department with people below the age of 30 years; this was allegedly the reason why the plaintiff was fired. The ordinary courts were not willing to take into account the figures relating to changes made by the minister after his installment. They merely referred to the fact that the figures of all departments (including those not within the control of the minister in question) did not show any discrimination. The Constitutional Court, in its 2009 judgment, directed the courts to take into account only those employees within the reach of the new minister.332 Interestingly, this seems to be the first case of any Czech high court in which judges have been directed to use statistics in adjudicating anti-discrimination law. Or let us consider the established case law of the ECJ on the issue of the procedural autonomy of national judicial systems. This principle provides that, unless Community rules govern the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding directly effective Community law rights. However, such rules must not, inter alia, render virtually impossible or even excessively difficult the exercise of rights conferred by Community law333 (the principle of effectiveness). It is the ECJ’s view that each case which raises the question of the principle of effectiveness must be analyzed by systemic and teleological arguments (by reference to the role which this provision plays in the proceedings, its progress and its special features, viewed as a whole, before the various national instances). In the light of that analysis, the basic principles of the domestic judicial system—such as protection of the rights of the defense, the principle of legal certainty and the proper conduct of procedure—must, where appropriate, be taken into consideration;334 yet, most post-Communist judges are unfamiliar with such matters. 332

Decision II. ÚS 1609/08 of the Czech Constitutional Court of 30 April 2009 (unpublished but available at the Constitutional Court’s website ).

333

Case C-33/76 Rewe v. Landwirtschaftskammer für das Saarland, ECR (1976), 1989, para. 5.

334

Joined cases C-430/93 and C-431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten, ECR I-4705 (1975), para. 19.

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Therefore, problems relating to interpretation, as reflected in judicial opinions, are likely to increase. In the face of the new rules provided by Community law, the problems associated with the deficient style of Central European judicial opinions—in which judges are unable to adequately address the arguments used in deciding the case—in all likelihood will be exacerbated. The ECJ has emphasized that a judge must decide a European issue in a way so as to satisfy the requirement that its legality, under Community law, can be reviewed and that the person concerned can ascertain the reasons for the decision.335 It is to be expected that problems will arise which are not unknown in other Member States,336 such as the absence of justification for the nonreferral of an issue to the ECJ by a domestic court of final appeal or the insufficient use of doctrine developed by the ECJ. In the post-Communist atmosphere, where the practice of judicial citation is underdeveloped, one cannot seriously expect proper references to ECJ precedents or to other sources of law.337 VII.2.5. Ordinary Courts II: Two Different Conceptions of Law The tendency of Central European lawyers to disregard persuasive arguments and soft law may also endanger the proper application of Community law in the new Member States. I would say that, in many of its elements, EU law rests more on the idea of soft law than on hard law, the latter being associated with the classical conception of the dichotomy between binding/non-binding, applicable/non-applicable or valid/invalid, while the former views the same phenomena rather as points on a continuum (which I have already highlighted in this chapter). A typical example is the doctrine of indirect effect of European directives, which presupposes that directives do not have (‘binding’) direct horizontal effect, but gives them a sort of force in legal interpretation.338 In other words, the ECJ understands that the law has an open texture and invites national judges to use this quality of the law in enforcing Community rights in national legal system, as is shown by the reasoning of its landmark judgment on indirect effect: 335

Case C-222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v. Georges Heylens and others, ECR (1987), 4097, para. 17.

336

B. Bapuly, “The Application of EC Law in Austria”, IWE Working Papers Series (June 2003) No.39, available at , 14-15 (visited on 23 May 2004).

337

Ibid., 15, noting several Austrian examples.

338

Case C-14/83 Von Colson v. Land Nordrhein-Westfalen, ECR (1984), 1891; and case C-106/89, Marleasing SA v. La Commercial Internacional de Alimentation SA, ECR I-4135 (1990).

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“[T]he Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 [now 10] of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the Courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national Court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter […].”339

However, Central European judges—not truly excited by the opportunities presented by the open texture of the law and suspicious of the use of persuasive discursive arguments (e.g., interpretation should conform to Community law as far as possible)—are not likely candidates to use such doctrines. Similarly, they are not likely to make use of comparative argumentation in areas where it would prove of great value for their developing legal systems—for example, in fields of a purely domestic character, not formally harmonized by European law. In an integrating Europe, however, the very concept of law of ‘a purely domestic character’ is open to dispute.340 All rules are at least potentially subject to becoming ‘Europeanized’, a fact which deprives national judges of the possibility to refuse to consider the solutions adopted in foreign legal systems. For instance, members of the Commission on European Contract Law expressly claim in their comparative project (incidentally patterned on the American Restatements of the Law341) that their work (the Principles of European Contract Law) is “available for the assistance of European courts and legislatures concerned to ensure the fruitful development of contract law on a Union-wide basis”.342 Another peculiar feature of the Community legal order is its approach towards legal argumentation: the European discourse is not dogmatic; rather, it is pragmatic and instrumental. Although this feature of the ECJ distinguishes it even from its Western European national counterparts,343 it is striking how entirely different its approach is to that of Central Eu339

Case C-106/89, Marleasing SA v. La Commercial Internacional de Alimentation SA, ECR I-4135 (1990), para. 8 (referring to Von Colson).

340

K.P. Berger, “The Harmonisation of European Contract Law – The Influence of Comparative Law”, 50 Int’l & Comp. L. Q. (2001), 877, 887.

341

See O. Lando, “The Principles of European Contract Law and American Legal Thinking”, in: Nafziger and Symeonides, op.cit. note 94, 741, 743.

342

O. Lando and H. Beale (eds.), Principles of European Contract (Kluwer Law International, The Hague, 2nd ed. 2000), xxii.

343

Generally, T.M.J. Möllers, Die Rolle des Rechts im Rahmen der europäischen Integration (Mohr Siebeck, Tübingen, 1999).

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ropean lawyers and above all judges, who still inhabit a realm governed by dogmatic textual positivism. Inexperience with the application of international law brings yet another problem. One might plausibly argue that the proper application of Community law is supported by having judges experienced in the application of some legal system other than municipal law. Those judges who are experienced in the application of international law understand that applying rules of that legal system differs from the application of rules of a municipal legal system. Judges who have never applied any law other than municipal statutory rules are not the best candidates to start enforcing Community law with all its specifics and peculiarities. In fact, there is a clear danger that instead of the Europeanization of national systems, the ‘domestification’ of Community law via judicial action might appear on the scene. A prime example is Slovakia where, as I have shown, the judicial review of laws and regulations had been, until EU Enlargement, entirely centralized within the Constitutional Court. Suddenly, as of 1 May 2004, Slovak ordinary judges became the enforcers of European law within their national legal system, with the important power to set aside any national act in conflict with European law. While for Polish judges, at least those at two highest courts of the ordinary judiciary, this merely represents the extension of powers they already possessed, for Slovak judges—and to a lesser extent for other Central European ordinary judges—the supremacy of European law enforced in a decentralized way represents a paradigm shift. VII.3. Reconsidering the Principle Iura novit curia: Authoritarian versus Authoritative Approach to Law In light of all the concerns alluded to in previous sections, I consider as particularly problematic the all-pervading notion of Iura novit curia, the idealistic principle of Continental law that the ‘judge knows the law’ and must apply the appropriate legal rule regardless of whether or not either party has brought it to the attention of the court.344 This principle deeply influences the self-perception of the post-Communist judiciary. One of the effects of the Iura novit curia principle is that—while the parties before a Continental court have the duty to raise issues of fact—they are not obliged to raise issues of law because the court is itself 344

Cf. on this e.g., J.A. Jolowicz, “Da mihi factum dabo tibi jus: A Problem of Demarcation in English and French Law”, in: P. Feuerstein and C. Parry (eds.), Multum non multa: Festschrift für Kurt Lipstein (C.F. Müller, Heidelberg, 1980), 84.

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obliged to do so even without the litigants’ assistance.345 As a consequence, pleadings to trial courts in most Continental countries are quite brief, without major excursus into legal issues; after all, it is the judge who is supposed to supply the relevant rule. In contrast, in the systems of the Common-Law culture (which is typically more pragmatic), judges have a more passive role; greater responsibility is placed on the parties—not only for providing issues of fact but, also, for arguing issues of law. This is so because, in constructing their opinions, Anglo-American judges draw heavily upon the parties’ competing arguments as to what the ‘correct’ statement of the law is.346 In Western Europe, however, the principle that the judge knows the law is not taken literally. Appeals in Western Europe tend to be longer and more elaborate when issues of law are controversial. That is the case because the basic, and often the only, reason for an appeal—and accordingly the main focus of the appellant’s brief—is to persuade the higher court that their interpretation of the law is correct and their opponent’s (or the lower court’s) interpretation is incorrect. In contemporary Continental culture, the judges technically ‘know’ the law but often need parties’ attorneys to help them find the relevant provision and to determine its best reading. The ECJ has ruled that in each particular Member State the maxim, Iura novit curia, applies in relation to European law to the extent that, in a similar procedural situation, it would apply in relation to that State’s domestic law. In other words, in those systems which adhere to the Iura novit curia principle, the courts should apply European law notwithstanding the fact that no party has raised the issue. The ECJ’s decision is a direct consequence of the fact that European law recognizes the autonomy of Member States’ procedural law.347 345

Cf. on the Western European approach to the duty/option of the parties to argue legal issues e.g., I. Meier, Iura novit curia: Die Verwirklichung dieses Grundsatzes im schweizerischen Zivilprozessrecht (Schulthess Polygraphischer Verlag, Zürich, 1975), 135.

346

For the reasons behind this cf. Damaška, op.cit. note 96,139.

347

See joined cases C-430/93 and C-431/93 Jeroen Van Schijndel and Johannes Van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten, ECR I-4705 (1995). Cf. paragraph 15: “[...] in proceedings concerning civil rights and obligations freely entered into by the parties, it is for the national court to apply Articles 3(f), 85, 86 and 90 of the Treaty even when the party with an interest in application of those provisions has not relied on them, where domestic law allows such application by the national court” and paragraph 22, which logically corresponds to paragraph 15: “[...] Community law does not require national courts to raise of their own motion an issue concern-

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In post-Communist countries, the principle Iura novit curia is taken more seriously than in Western Europe, a fact which, on the surface, might be cause for encouragement because their courts (both trial and appellate) should, in principle, apply Community law even if no party refers to it (with the exception of supreme courts, that is, as they are generally required to address only the issues specified in the extraordinary appeal and cannot go beyond them). During the Communist era in Central Europe, for practical purposes, idealistic readings of this principle drove the argument of law out of parties’ pleadings. According to the leading Czechoslovak commentary on civil procedure, law cannot be subject to judicial recognition during the proceedings before the court; it must be known to the court in advance of the dispute arising. “The knowledge of law must be made by the [judicial] body itself; it is possible to say prior to [civil] proceedings and beyond these proceedings.”348 No cooperation on the law’s finding was necessary; moreover, it would prove harmful, as the parties would interfere with the court’s exclusive domain. An additional reason why, during the Communist era, no help was needed from the parties in constructing the law was the fact that few parties were represented by a lawyer.349 Moreover, the fact that scant attention was paid to the attorneys’ arguments fit well within this picture of the socialist application of law because Communist legal systems claimed that no party should gain an advantage from having a better lawyer.350 This approach mirrored the Communist authoritarian approach to the law, which is in fundamental contradiction with the discursive approach to law that meanwhile has prevailed in Europe. Let us recall that, by an authoritarian approach, I mean the approach whereby legal answers can be constructed solely in a single way from the top of the system, the top

ing the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.” 348

J. Rubeš et al., Občanský soudní řád. Komentář (Code of Civil Procedure. Commentary), (Orbis, Praha, 1970), 447 (emphasis added).

349

Ibid., 455, where a scholar does not seem even to expect that it was also possible for a party to be represented by a competent lawyer who might provide a qualified legal opinion to the court.

350

Sbírka rozhodnutí (1949), 1.

Chapter 5: Judicial Methodology in a Post-Communist World

291

holding “a social monopoly over determining the meaning of legal and political language” and “communicating it downward”.351 The authoritarian approach to law—combined with formalist textual positivism and the ideology of bound judicial application of law—accords to the judge the exclusive role in constructing the meaning of the law. It is so because: (1) the application of law is conceptually viewed as the resolution of easy cases by the court, which does not, in that process, require the assistance of either party (formalist aspect);352 and (2) the construction of the law is the result of a top-down process, where parties are the addressees of the result of construction rather than direct (or indirect) participants in that construction (authoritarian aspect). It is clear, as this volume has shown by numerous examples, that the authoritarian approach to law still governs post-Communist legal discourse. The principle Iura novit curia seems to function as a barrier separating the parties before the court from the judge. An intriguing vicious circle is at work here. The legal arguments made by parties’ attorneys in their briefs rarely exceed a few paragraphs and almost never include proper cites to the literature and case law, thus failing to provide the judge with adequate, useful information. Perhaps because the legal arguments made by the parties are worthless, the judge will often ignore even those rare arguments which are valuable and might help her in finding the relevant case law, useful comparative materials from abroad, etc. Instead, the judge will only elaborate the court’s own legal theories.353 Thus, when taken too seriously, the principle Iura novit curia becomes self-fulfilling, discouraging both parties from contributing to the court’s legal reasoning as well as judges from drawing upon the attorneys’ expertise. The effective application of EU law necessarily requires parties to be engaged in constructing the courts’ arguments, which is bringing the European systems closer to the Anglo-American discursive conception of law in which the court’s legal conclusions are reached in a discursive manner. 351

S. Rodin, “Discourse and Authority in European and Post-Communist Legal Culture”, 1 Croatian Yearbook of European Law and Policy (2005), 1, at 7.

352

Rubeš, op.cit. note 348, 455 (as legal professionals, judges must know their legal order, and no one can claim that it would be impossible to know all the laws).

353

This approach is often criticized by the Czech Constitutional Court which has repeatedly insisted that ordinary courts have to address every legal argument made by each party. Cf. decision III. ÚS 176/96 of the Czech Constitutional Court of 26 September 1996, 6 ÚS (1996), 151ff.

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The principle that the judge knows the law does not require this knowledge to be acquired without any assistance from the parties, as posited by the authoritarian (post) Communist conception of law. If one understands law as discourse (and I claim that the judicial conception of law must understand law as discourse—the conflict of parties’ views about both fact and law), then a judge must explain why her reading of the law is the best interpretation when faced with other interpretations offered by the parties, conflicting case law or legal literature. Judges are the final authoritative interpreters not because they are omniscient and infallible but because of their function and status within the legal system.

Conclusions Rethinking the Future of the Central European Judiciary: From Judicial Self-Restraint to a More Activist Judiciary? After the end of Communism, the old ‘Socialist Legal Family’—which most comparative law treatises had posited—had seemingly been replaced by a legal black-hole.1 Although as a result of the EU Enlargement, the ‘other Europe’ had become part of the European Union, it would be too simplistic to assume that all features of the old legal culture have disappeared with the fall of the Berlin Wall so that those countries’ legal systems thereby automatically have been assimilated to the EU norm. The purpose of this work has been to fill this gap and to show some specific features which might describe common elements of post-Communist legal culture. My basic starting point has been influenced by the fact that—when lawyers and academics from post-Communist countries meet—they always find that they are all beset by a common set of problems regardless of the country from which they come. If I were briefly to characterize the findings of this work, in respect to the nature of the post-Communist ordinary judiciaries, I would say that most of them relate to the excessive formalism of post-Communist law and to the specific type of authoritarian legal culture based on many old-fashioned, Continental legal myths. In fact, the analysis of Imre Szabó written in the 1970s is fully applicable in the 2000s. Legal scholarship used to be, and still is, based on the position of simplistic textual positivism, in that it takes “an apologist’s view in respect of the existing […] legal systems”. Academia and the old-fashioned parochial legal education is left “with hardly any other role but to provide explanations justifying positive law, while the study of the conditions for continued evolution, including a criticism of existing law, [is] relegated to the background”.2 This prominent feature—accompanied by insufficient funding of higher education throughout the region—to a 1

Cf. R. Mańko, “The Culture of Private Law in Central Europe after Enlargement: A Polish Perspective”, 11 European L. J. (2005), 527, 547-548, discussing the fact that the most recent edition of Zweigert and Kötz’ treatise on comparative law simply discarded the Socialist Legal Family “without writing anything in their place”.

2

I. Szabó, “The Socialist Conception of Law”, in: K. Zweigert and U. Drobnig (eds.), International Encyclopedia of Comparative Law, Vol.II, The Legal Systems of the World. Their Comparison and Unification, Chapter 1, “The Different Conceptions of the Law” (Mouton, The Hague, J.C.B. Mohr, Tübingen, 1975), 52.

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The Judiciary in Central and Eastern Europe

remarkable degree has assisted the old ideology of the judicial application of law in being surprisingly resistant to the challenges of the postCommunist era. The empowerment of the judiciary via the European Enlargement may be considered as a sort of treatment for many problems described in this work. Although European law will face a number of obstacles, a kind of ‘spill-over’ effect is at work as national judges begin to make use of the new tools provided by EU law—even in purely domestic cases. As in the old EU Member States, “the increasingly intensive penetration of a patulous Community law into the fabric of the domestic legal systems” will bring about “a dramatic alteration in the constitutional status of the national judicial authorities”.3 Recent cases of the Czech courts relating to the principle of the prohibition of abuse of law, inspired by ECJ case law, are nice example of this trend.4 They show that general principles of law (the status of which as the law was rejected a decade ago by mainstream academia) are, indeed, law and as such that they are applicable in all areas of law—including public law. Yet there is also another possible spill-over effect The ideology of bound judicial decision-making is not likely to survive the challenge posed by the realities of an empowered judiciary; a new ideological conception of the judicial function will be even more urgently needed. National ordinary judges have acquired new competencies—above all, the power given by Community law to set aside national legislation, thus creating a decentralized system of judicial review in the countries where it has traditionally been centralized. The exercise of that power in particular will inevitably call for more sophisticated explanations of the significance of precedent (whether or not it is recognized as having binding force), since this is a precondition of any sensible application of Community law in the Member States. Post-Communist legal scholarship will have to develop new doctrines and methodology which will be better able to account for judicial decision making and which will provide post-Communist lawyers with more practical ideologies of the judicial application of law. Moreover, the ongoing European integration increases the importance of comparative-law research and comparative-law studies.5 That is one 3

A. Barav, “Omnipotent Courts”, in: D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol.II (Martinus Nijhoff Publishers, Dordrecht, The Netherlands, 1994),, 265, 301.

4

Decision 1 Afs 107/2004-48 of the Czech Supreme Administrative Court of 10 November 2005, Sbírka rozhodnutí Nejvyššího správního soudu [Collection of Decisions of the Supreme Administrative Court] (2006) No.869.

5

Cf. e.g., A5-0384/2001 European Parliament Resolution of 15 November 2001 on the approximation of the civil and commercial law of the Member States (COM(2001)398,

Conclusions

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reason why a significant increase in the role of comparative law is to be (further) expected in the ten post-Communist nations which joined the EU in the 2000s as well as those which may hope to join the EU in the foreseeable future (the Western Balkans, Croatia, and Macedonia). Increasing criticism of parochial approaches towards legal education— as well as the necessity to make legal studies more attractive for exchange students in the EU Socrates-Erasmus program—and similar factors are likely to put further pressure on universities in the region to increase the overall comparative and transnational orientation of legal education. When this occurs, it will become virtually impossible to continue disseminating the old fashioned judicial methodologies which, at present, are still taught at many post-Communist law faculties. With the ongoing empowerment of the post-Communist ordinary judiciary, serious discussion about the proper level of judicial self-restraint and the limits of the judicial function would inevitably start. Although I wholeheartedly support the empowerment of the judiciary, I am far from being a person who advocates a one-sided judicial activism or who naively believes that all human wrongs and the ills of society can be redressed by all-powerful judges acting as social engineers.6 Discussions concerning the proper limits of judicialization are entirely legitimate and very important. With the collapse of the original strictly conceived model of the separation of powers, courts are no longer the unwilling and mechanical enforcers of rules made through the political process in parliament. The progressively increasing judicialization of society seems to be “a partial aspect of societal evolution”,7 and future legal theory must focus on developing new schemes which will be able, fully and properly, to account for such judicial activity. If, in the long run, the C5-0471/2001,2001/2187(COS)), para. 14 (f) (available at ), urging the Commission to submit an action plan comprising, inter alia, “measures to promote the dissemination of comparative analysis and common legal concepts and solutions in academic training and in the syllabuses of the legal profession, as well as promote dissemination of Community law to the same academic and legal circles”. 6

This can be nicely shown on the example of a super-activist decision of the Czech Constitutional Court, in the fall 2009, in which it nullified a constitutional law which had called for early parliamentary elections. The Court held that the law was not a regular amendment to the Constitution but, rather, ad hoc breach of constitutional law (individual law for just one, single occasion). See decision Pl. ÚS 27/09 of the Czech Constitutional Court of 10 September 2009, (in English) available at .

7

G. Teubner, “Juridification: Concepts, Aspects, Limits, Solutions”, in: G. Teubner (ed.), Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law (Walter de Gruyter, Berlin, New York, NY, 1987), 3, at 27.

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judiciary comes to represent a serious obstacle to widely accepted societal reforms, this would undermine the process of judicialization and lead to a new era of judicial self-restraint, such as occurred in France after 1789. However, for as long as the process of judicialization is generally considered “one of the most powerful barriers that has ever been devised against the tyranny of political assemblies”,8 the judicialization of politics is likely to continue.

8

A. de Tocqueville, Democracy in America, Book I, (Vintage Books, New York, NY, 1945), 107 (original 1835).

Subject-Matter Index A Abstract legal principles, See Principles, abstract Abstract clauses ............................. 146, 198 Abstract norm control ......................... 258 Abuse of rights, See General clauses Academia after the fall of Socialism ........ 174, 180, ........................187, 189, 201, 258ff., 293ff. during Socialism ...22ff., 28ff., 118ff., 130 during World War II .......................... 17 importance for judges and case law...........134ff., 212ff., 226ff., 230 Poland, Czechoslovakia and East Germany compared...............131 See also Purges at law faculties and Students of law during Socialism Academics .................... 16, 23, 129, 130-131, ............................ 173-175, 187, 192, 200, 213, .................................. 218, 230, 234, 269, 293 suspicious ............................................ 32 Acquis communautaire ............209, 267, 269 Acte Claire ............................................... 257 Activist constitutional justice, See Constitutional justice, activist model Administration of the judiciary ...9ff., 44, .........................................95, 127, 179ff., 204 See also Supreme councils of the judiciary Administrative Court, Federal Republic of Germany ......... 222 Administrative Court, Supreme of Czech Republic ........... 192 (n.9), 208 of Czechoslovakia ................................8 of Poland ............. 173, 248, 257, 259, 269 of Slovakia ........................................... 19 Administrative law ............................... 260 Allgemeine Gültigkeit, See General validity Anti-European approach of Czech ordinary courts ................................. 273 Approximation process......... 271, 294 (n.5) Arbitrariness ...........72 (n.32), 201, 210, 265 Arbitration, See State arbitration Attorneys during Socialism ...........27, 55ff. Ausstrahlungswirkung, See Constitutional principles, radiation of into simple law

Authoritarian and authoritative discourse.............................. 152ff., 288ff. Autonomy of procedural laws ..............289 B Basic principles, See Principles Basic rights......xxi, 199, 223, 234, 237-238, 264 horizontal effect of..............................237ff. Begriffshimmel, juristischen, See Heaven of legal concepts Bindingness .................................76, 83, 217 Begriffsjurisprudenz ............................78, 161 Bourgeois civil proceedings ..........................42, 153 class .................................................... 141 formalism ............................................98 judiciary ..............................................153 law ..........24 (n.9), 25, 31, 91, 94, 107, 141 lawyers ................................................137 legality ...............................................107 liberal state ........................................ 116 origins .................................................123 public/private law distinction ............41 remnants in human thinking ............121 rule-of-law notions ...........................120 society........................... 103, 119, 138-139 Bourgeois legal development .....................................160 education ..........................................104 institutions ......................................... 31 judicial independence ......................104 positivism...........................................117 scholarship ...................... 95, 139 (n.194) theory (term for comparative law) ... 114 thinking...............................................97 C Case law.... ................. 98, 100ff., 113, 120ff., ...................................... 134ff., 190ff., 209ff., ...............................223ff., 238ff., 251ff., 273ff. Czechoslovak, discussion of impact on by Austrian judges .................16 (n.78) interaction with legal science ..........264 reporters, case-comments................226 Case-law analyses..................................... 23

298 conflicting/unifying role of ..............224 unprincipled/unpredictable change of ....224 Cases number of, litigated before socialist courts............................. 46ff. publication of, after the fall of Socialism ................................ 191ff. publication of, during Socialism ....128ff. Catholic Church ......................................98 Certiorari, See Selection of cases by the high court Citation, judicial ....................................286 to foreign sources ..............................213 to legal writings .........................212, 214 Civil Code .......................................... 5, 146 of Austria ........................7, 32 (n.40), 63 of Czechoslovakia .......32 (n.40), 33, 63, ..........................100ff., 110, 118, 143, 238 of East Germany ..................... 32 (n.40) of France ...........6, 7 (n.27), 33, 86 (n.93) of Germany (BGB)..................2, 32 (n.40), 63, ...............................................86 (n.93), 92 (n.115) of Hungary ......................................32-33 of Poland ..........................................7, 33 Socialist .................... 32 (n.40), 33 (n.45) Soviet ...................63, 92 (n.115), 97 (n.134), .......................................................115 (n.198) Civil law ...............5, 9, 17, 63-64, 97-98, 111, ..............................113, 120 (n.220), 159-160, ..............................217 (n.99), 260, 294 (n.5) Civil law doctrine, Western .................... 33 Civil litigation, delays in ....................... 127 Civil procedure ........3, 41-42, 182, 267, 290 Civil Procedure Code of Austria ..........................................3, 9 of Hungary.......5, 40 (n.85), 43 (n.96 & n.99) of Poland .............................40-41 (n.85) of Czech Republic ....184, 239, 242 (n.189) of Czechoslovakia ........238, 242 (n.289) of Slovakia ........................................ 184 Class consciousness ........................149, 118 Class origins .................................... 116, 123 Class struggle ......................................... 141 Classless society ... 89 (n.100), 90-91, 102, 132 Classness ..........................................113, 119

The Judiciary in Central and Eastern Europe Codification ............5, 32 (n.40), 52 (n.145), ..........................83 (n.81), 142ff., 267 (n.269) Commercial law .... 17, 25, 48, 188, 294 (n.5) Commentaries, persuasive force of ...213-214, ..................................................... 273 (n.287) Commission on European Contract Law....287 Common core of human rights ............220 Common European values/principles .... 202, ...................................................... 227, 270ff. Common Law ................ 5, 35, 41, 71 (n.26), ........... 83, 102, 138, 139, 152, 167 (n.19), 170, .......... 211ff., 231ff., 245, 259, 261 (n.250), 274, 289 divergence with Continental Law ....62ff., ......................................................219-221 domestification of ............................288 fundamental distinctiveness of ....... 221 Common sense .............................204, 240 (Havel’s emphasis upon) .................. 227 Communist Party .......... xix, 22, 26, 29, 30, ................................34, 44, 53, 56-57, 60, 61, ......................... 95, 97-98, 101, 104, 118-120, .............................. 122-123, 127, 131, 134, 138, ...........................144, 147, 150, 165, 206, 265 Community law ................244 (n.199), 261, ..................... 267-268, 271ff., 282ff., 294-295 useful effect of .................................. 281 See also European law Comparative argumentation.... 263 (n.257), 287 as distancing device ..................265-266 Socialist ............................................. 127 Comparative constitutional law/ comparative constitutionalism ....263ff. See also Constitutional law Comparative international case law ....264-265 Comparative law....xiii, 64ff., 263, 265, 292 after the end of Socialism .............263ff. disruptive power of ..................81 (n.74) growing power of in European integration...................294 Hungarian traditions of ..................... 33 importance of ........ 273 (n.287), 294-295 ..... reference to, in Czechoslovak judicial decisions of 1970 and 1980s.....127 (n.242) scholars ............................................... 64 Stalinist variable ............................... 114

Subject-Matter Index use of, by courts ....................264 (n.257) See also Isolationist way of ignoring importance of comparative law and Socialist comparative law Comparative materials in judicial proceedings....................................... 291 Competence of the courts during Socialism ..............................36ff. Conceptual jurisprudence ...............78, 161 Conseil d’État See Constitutional Council of France Constitution of Austria ...............39 (n.75), 256 (n.235) of Belgium.................................39 (n.75) of Czech Republic ..........180, 202, 221, .................... 238, 241, 249-250, 295 (n.6) of Czechoslovakia .... 8, 9, 11, 18, 28, 39, ...................97, 99, 100-101, 137, 146-137 of East Germany .............................. 159 of Germany .....39 (n.75), 240, 256 (n.235) of Hungary ........................................264 of Italy .......................................39 (n.75) of Poland ........................ 9, 40, 178, 193, ................. 236-237, 243, 248, 253 (n.219), ...................254 (n.222), 255-258, 276-277 of Slovakia ................................196, 246 of Spain ................................. 256 (n.235) of US ................................................ 240 of USSR............................57 (n.180), 137 Constitutional complaint ..................194ff. Constitutional Council of France ............260 Constitutional Court of Austria ......................99, 197-198, 280 of Czech Republic ..... xxi, 135-145, 172ff., ................. 190, 192 (n.9), 194ff., 227, 233, .......................237-239, 241, 249ff., 265ff., .................280, 285, 291 (n.353), 295 (n.6) of Czechoslovakia .... 8, 16 (n.78), 18-19, .......................................57-58, 193, 226ff. of Germany ......... 163, 175, 192, 197-199, .............................. 222-223, 233, 237, 240, ................................274 (n.295), 276, 280 of Hungary........ 166, 193, 198 (n.34), 233ff., ..............251 (n.213), 263-264, 267 (n.269) of Italy ............. 192-193, 242, 275 (n.295) of Russia ............................. 142, 175, 262

299 of Slovakia......166, 176, 194ff., 246ff., 265, 288 of Slovenia ...................... 175, 225 (n.229) of South Africa ... 193 (n.12), 265 (n.264) See also Constitutional Tribunal of Poland Constitutional (High) Court of Australia .............................. 193 (n.12) Constitutional courts activist ............................................... 174 as special and unique body, not a court .....................................248 overly activist ....................................230 relations with legislature................. 240 self-restrained ................................... 174 unrestrained activism ............xxii (n.10) Constitutional courts in Central Europe ......xxi after 1989 ............................. 174ff., 193ff. anti-formalism of ..............................229 appointment of constitutional justices .............................174ff., 226ff. as third generation ........................... 193 binding force of their decisions........................129, 223ff., 232ff. difference with ordinary courts .. xvii, 263 direct control over ordinary courts, lack of.............................................247 gap between ordinary courts ...........246 insulation of ordinary judiciary from ...............................171, 182, 195ff. interactions with ordinary judiciaries .............. 194, 196, ..........................199ff., 208 (n.68), 226ff., ...................................236ff., 246ff., 255ff. public support....................................229 Constitutional justice............................201 activist model....................................229 German model of .............................199 Constitutional law ..........81, 132, 175 (n.63), .................................. 197-200, 237-238, 270, .............................276 (n.299), 281, 295 (n.6) See also Comparative constitutional law Constitutional principles, radiation of, into simple law ............ 237 Constitutional review ........8, 80-81 (n.67), ......................... 99ff., 157, 190ff., 233 (n.157), ................................ 242, 245-247, 259ff., 281 socialist ...............................................157

300 Constitutional rights and values (seriousness of)..................................248 Constitutional traditions, absence of...................................... 264ff. Constitutional Senate of Slovakia.......... 19 Constitutional Tribunal of Poland ....... 40, ......................................... 193ff., 233ff., 252ff. See also Constitutional Court Constitutionalism, idea of endangered ........................... 223 See also New Constitutionalism Constitutionalism, multi-level ......247 (n.319) Constitutionalization of fundamental values ..................80 (n.67) of private law ................199 (n.39), 237, 266 Constitutionally conforming interpretation .................................. 240 Convergence of legal cultures .............. 139 Corpus Juris ............................................... 33 Council of Europe ..................248, 255, 267 Court of Justice of the European Union, See European Court of Justice Crimes committed in the 1950s, Czechoslovak Government’s commission of inquiry ............ 22, 27-28 Criminal Code ................................ 122, 127 of Austria .......................................... 100 of Czechoslovakia ............................ 148 of Poland ............................................ 99 of Soviet Russia...................................95 Criminal law .................... 17, 44, 47, 97, 115, ........................................... 116, 149, 182, 253 during Stalinism...............................115ff. of Germany ..................................7 (n.27) of Poland ......................................7 (n.27) Criminal procedure ..................41, 182, 267 Criminal Procedure Code........ 3 (n.11), 182 of Austria ............................................... 3 of Czechoslovakia ...............40-41 (n.85) of Hungary............. 40 (n.85), 184 (n.99) of Poland ..........40-41 (n.85), 276 (n.303) Custom .......................... 134, 217 (n.99), 233 D Delay in resolution of court hearings .......214 De-Stalinization ............................. 21, 28ff. Doctrinal writings ................................. 212

The Judiciary in Central and Eastern Europe Dualism ......... 109, 251 (n.213 & n.214), 254 Duality of law......................................... 139 Dutch legal culture ............................ 48, 51 Dynamic interpretation ........................ 277 E Easy cases .................................... 76ff., 84ff. Effet utile, See Community Law, useful effect of Efficiency, judicial .................. 9, 70-71, 124, ......................................... 168, 204, 243, 245 Einfaches Recht, See Simple law Election of judges during Socialism, See Judges, recruitment during socialism Enemies of the people .......................... 127 Eternal clause.........................................249 European approximation process, See Approximation process European Arrest Warrant cases ........276ff. European case law principles of ...................................... 275 values of .............................................284 European constitutional principles ..... 282 European Convention for the Protection of Human Rights and Fundamental Freedoms ................ 221-222, 251-252, 254ff. European Court of Human Rights ..... 142, ..................220ff., 248, 251-252, 255, 266-267 impact upon constitutional courts ..265 binding force of its decisions ....... 221ff. European Court of Justice ............... 220ff., ........... 245, 261 (n.252), 270, 274, 282ff., 294 case law ............................................. 274 interaction with national judiciary......274 European directives ................................ 83 disruptive effect of, on national legal orders .....................267 doctrine of indirect application of ...286 horizontal effect of ...........................286 incorrect/careless translations of ....267 transposition of ............................ 268ff. European Enlargement .................xvii, xxi, ................................. 192, 220 (n.113), 266ff., ...........................................281, 288, 293-294 European integration ..............39, 81, 219-220, ..........................................259 (n.242), 272, 294

Subject-Matter Index European law .....xxii, 219, 244ff., 267ff., 294 application of, by courts of new Member States ..........255, 266 fundamental principles of applying ........................................ 280 general principles of......................... 271 role of, prior to membership of new accession states ............................ 273 See also Community law uniform application of ..................... 274 European legal order, interaction with national legal orders .........................279 European Parliament ................... 294 (n.5) European values, common.................... 272 Europeanization of legal systems ................. 258, 267-268, .........................................284 (n.331), 288 of national judiciary .........................284 of Polish law ...................................... 258 F Foreign advisors supporting post-Communist legal reforms .......164 Foreign case law.................200, 273 (n.287) citations to, by Czech Constitutional Court ........213 Foreign commentaries .............. 273 (n.287) Foreign experience/models, borrowing from................................ 263 Foreign languages ..................................270 Foreign law ............................................. 271 Foreign legal education .........................270 Foreign legal ideology, inspiration by ....................................266 Foreign legal scholars .............................xvi Foreign methodology ............................266 Foreign powers, dictating alternatives........................279 Foreign relations....................................279 Foreign systems solutions of........................................ 287 See also Transplanting of law Formalism .... 72ff., 77ff., 116ff., 191ff., 227ff. challenge to, during Stalinism ............................. 74ff., 95ff. decline of, in the West ....................77ff. pragmatic ......................................... 204

301 rhetoric and real practice of, after Stalinism .......................................95ff. rise of, after the fall of Stalinism ................ 116ff., 145ff., 151ff. Free law ...........................................68 (n.9) Freirechtslehre, See Free law G Gender equality during Socialism ..............................54ff., 100ff. General clauses ......................82ff., 139-141, .....................................146 (n.330), 209, 272 criticism of, during Socialism ....... 139ff. General validity ..................................... 222 German Federal Administrative Court ....................... 222 Good faith.........................82, 176, 209, 272 See also General clauses Good morals ...........................114, 209, 272 See also General clauses Guidelines, See Judicial interpretative guidelines/rulings/statements Gute Sitten, See General clauses H Hard cases ................................... 75ff., 84ff. Harmonization ...............250 (n.213), 268ff. of legal systems ..............191, 209, 266ff. Heaven of legal concepts ..............75 (n.45) Holy See ...................................................98 Hooliganism ....................................141, 148 Horizontal effect, See European directives, horizontal effect of Human dignity ....................................... 198 Human rights ............. 99, 127, 142, 147, 151, ..................... 220-223, 247ff., 266ff., 271, 281 I Ideology ................................................ 67ff. See also Judicial ideology Individual rights ......248, 258, 264-265, 285 Instrumental concept of law during Stalinism ........................... 109ff. International law .......xxi, 61, 88, 157-158, 244, .................... 246, 248-255, 259, 263, 268-288 common source of law and legal arguments.............................250

302 Interpretation authentic ............................................138 of law during Socialism ................. 135ff. remedial ............................................. 141 Interpretative courage ............ 125, 227-228 Isolationist practices of Czech ordinary courts ..................... 273 Isolationist way of ignoring importance of comparative law ............... 273 (n.287) Iura novit curia .....................................288ff. J Judge-made law, See Judicial decision-making Judges Communist Party membership ......56ff. fate after the fall of Socialism.......164ff. feminization during Socialism...........54 mechanical instruments ..............98, 155 non-transparent selection procedure .................181-182 number of ex-Communists in the judiciary in the 2000s ............... 165ff. number of female judges after the fall of Socialism ............... 54ff., 170ff. pay during Socialism........................ 53ff. pay during the 1990s and 2000s ... 169ff. recruitment after the fall of Socialism....................................169ff. recruitment during Socialism .........57ff. Judicial activism ............198 (n.34), 253, 295 during Stalinist regime ...... 88, 95ff., 158 its decline ......................116ff., 139, 151ff. Judicial decision-making .......... xx, xxi-xxi, .............42, 65, 67ff., 102, 104, 109, 125, 128, ...... 136-137, 140, 153, 160, 187, 189, 190-191, ............... 194, 196, 198, 199ff., 256, 261, 294 creative decision-making/law-making..219 during socialism .................. 134ff., 139ff. in abstracto .......... 8, 128, 218-219, 235-236 See also Judicial ideology Judicial discretion ....70, 97, 139 (n.299), 282 Judicial ideology............................ 67ff., 238 ideology of bound judicial decision-making ......................... 67ff. ideology of free judicial decision-making ......65ff., 82, 88, 97, 153

The Judiciary in Central and Eastern Europe ideology of legal and rational judicial decision-making ............ 68ff. Judicial independence .......... xviii, 3, 13, 18, .................. 21, 30 (n.33), 57ff., 104, 120, 129, .................. 159, 179-180, 205 (n.57), 209-211 after the fall of Socialism.............. 178ff. breach of ............................................235 during Socialism ................................. 57 splendid isolation of ........................211 Judicial interpretative guidelines/rulings/ statements ..............85 (n.90), 128, 218-219, ....................................................235, 242-243 Judicial law-making ............77, 79, 156, 188, ....................................................211, 218-219 Judicial quality .................................177-178 Judicial passivism ............................. 88, 139 Judicial reasoning, substantive .............226 Judicial review.... 80, 101, 194, 215, 240ff., 269 centralized ..................................... 252ff. decentralized ..............99ff., 199, 244ff., ........................................... 281, 288, 294 during Stalinism ............................. 99ff. mixed model (centralized/decentralized) ...........244, 252, ..............................................................259, 262 soft constitutional ............................ 241 under Communism .........................36ff. unrestrained............ xxi, 68, 73, 129, 227 Judicial styles after the fall of Stalinism .............. 116ff. during Stalinism ...............................77ff. in Austria ......................................... 98ff. in France .......................................... 86ff. in Germany ......................................87ff. quotations of Communist leaders ... 25, ......................................................28, 106 Judiciary, inferior role of ................229-230 Jurisprudence silent departures from ..................... 225 substantive ........................................ 258 Jury.........................................................3, 35 reintroduction to Russia in the 1990s .................................. 35 (n.49) Justice, substantive ......................... 125, 154

Subject-Matter Index K Kulak ....................................................... 116 L Law and economics ............112, 261 (n.250) Law and morality ...................................107 after the fall of Stalinism ............. 108ff. during Stalinism .............................107ff. Law and statute, difference between........282 Law command theory of ........................... 94 confidence in..................................... 225 duality of ........................................... 139 improvement of through judicial practice ............................ 189 new conceptions of .......................... 227 ordinary ............................. 200, 238, 257 real .................................................... 209 sources of, See Sources of Law Laws, poor quality ................................. 189 Lay people and their participation on the judiciary during Socialism ........34ff. Legal certainty ............................. 202, 225, 285 conscience of the people .................. 111 culture .................xvi-xvii, xxi, 1ff., 21ff., .........................65, 79, 82-83, 86, 98,101, .......................... 107, 128, 139, 142, 151ff., ..................166, 174, 189-190, 198, 213ff., ......................227, 231, 263, 271, 290, 293 decision-making process ..................152 doctrine, new wave .......................... 217 education .......................................130ff. educators, attitudes towards Czech Constitutional Court ...................230 injustice ............................................ 147 insulation from judicial decision-making........................... 212 interpretation............................. 135-136 order as living entity........................ 282 policies .............................................. 283 post-Communist, interest in legal principles........... 282 principles, See Principles realism ...................................... 106, 228 rejection of reference by trial courts ....................................210

303 scholarship .........113, 129-130, 189 (n.3), ....212, 214-215, 218, 226ff., 264, 267, 284 science, See Legal scholarship syllogism, simple ......................208-209 trend to oppose constitutional courts decision-making...........................229 See also Socialist legal conscience Legal transplants, See Transplanting of law Legislation, omni-solving............. 140, 208 Legislative interpretation................................... 141 optimism ..................... 52, 140, 142, 271 Legitimacy gap....................................... 265 Leitfunktion, eine normative, See Normative guidance function Limited law .......................... 145, 151, 187ff., ................. 201ff., 226, 258, 268, 271-272, 282 Linguistics, Stalin’s theory of ..............95ff. Living law ....................................... 242-244 M Maastricht case .......................................276 Margin of appreciation .................. 283-284 Marxism-Leninism ......................... 31, 88ff. quasi-religious features ......................24 Marxist scientific world judgment ....... 105 Marxist-Leninist world view .........62 (n.207), 121 Mechanical application of the law ...................... 227 choice....................................... 70 (n.19) enforcers, courts as.......................... 295 identification of law with legal texts ..145 job of judge........................................117 jurisprudence ........................ 199ff., 282 machine ..................38, 54, 98, 104, 246 reasoning .............................76, 136, 148 Monism ............................ 249, 251-252, 254 N Natural law .................. 106, 150ff., 230, 265 Nazi Germany and its law ............. 81, 106, .................................................. 108ff., 146ff. New constitutional judiciary .................233 New constitutionalism...........101, 175, 198, ..................231 (n.148), 234, 240, 244ff., 260 New positivism .......................... 231 (n.148) Normative guidance function .............. 222

304 Normativism in Poland ....................................25 (n.14) See also Socialist normativism O Objective truth in civil proceedings ..40ff. ‘One-right thesis’ (Dworkin) ......85 (n.91), 152 Marxist variant ..................................160 Socialist variant ........................... 151, 155 Stalinist variant ............................... 84ff. P Parasitism ........................... 47, 126, 177, 182 Parliamentary sovereignty ....................230 See also Sovereignty PECL, See Principles, European Contract Law Personal area ..........................................109 Plastic People of the Universe case.........148ff. Political crimes .................98, 106, 126, 141 Political trials of the 1950s................... 26ff., 57, 147, 155 of the 1970s and 1980s....................... 148ff. Slánský trial .........................................26 Positive law ....81, 122, 133, 145, 151, 157, 293 Positivism ....................xix-xxi, 63ff., 80-82, .................................. 88-89, 97, 107, 116-117, .....................120ff., 145ff., 172, 189ff., 199ff., ................................ 226ff., 246ff., 271ff., 293 inclusive positivism ...........................131 Prague Spring of 1968 ................. 22, 28, 30 aftermath ......................................... 30ff. Precedent .....83, 113, 134-135, 210, 214ff., 294 as a source of law ...................134, 212ff. binding ..... 217, 221-222, 234-235, 252, 274 continuum of differing relevancies of ............. 217, 222 (n.219) discursive authority of .....................226 new conception of law ...............222-223 of legal writings ................................ 212 of the constitutional court ........... 232ff. Principle of cooperation............................... 263, 274 effectiveness ..................................... 285

The Judiciary in Central and Eastern Europe evaluating evidence ....................... 3, 211 judicial independence ........................ 18 legal certainty ...................................202 proportionality .................. 203, 282-283 protecting citizens’ faith in law ......202 Principles abstract ........................ 40, 246, 281-283 aesthetics .......................................... 148 application of European law ........... 282 basic rights ........................................264 bourgeois ............................................ 31 constitutional ............. 18, 101, 110, 180, .............. 199 (n.39), 202, 237-238 (n.174) Continental legal culture ................... 32 cooperation...........................263 (n.256) Czech constitutional law .................270 domestic legal system ...................... 285 duty of court to justify its decisions.... 211 embedded in precedent ....................113 European Contract Law .................. 287 European law ............ xvii, xxii, 271, 284 fair trial ........................................26, 211 general............ 134, 189 (n.3), 201, 209, 271, ...................................................282-283, 294 international law .................. 250 (n.113) justice ............................................... 200 legalism and formalism .................... 156 loyalty ....................................263 (n.256) Marxism-Leninism...... 102, 141, 157-158 of law during Socialism ................. 134ff. policy ................................................. 282 procedural law ..................................... 4 prohibition of torture ........................26 right to counsel ..................................26 skepticism about ................................ 83 Socialism ...........................................107 Socialist community living/ cohabitation .....................97, 105, 111 Socialist democracy ..........................135 Socialist intercourse..........................117 Socialist law ...................................... 134 Socialist morality..................32 (n.44), 105, ........................................... 107-108, 122, 141 Socialist state ................................88, 97

Subject-Matter Index Stalinist legal philosophy...........xix, 152 traditional, disappearance of.............63 underlying judicial decisions in Stalinist era ....................................125 unwritten .......................................... 134 Procedural autonomy ............................ 285 Proceedings, simplified ......................... 182 Proliferation of sub-statutory regulations during Socialism ..............................39ff. Proportionality, See Principle of proportionality Prosecutors during Socialism ......43ff., 184 Protection of public order, See General clauses Public policy/public morality ......... 82, 148 Punishment proportional ..................................... 126 retroactive..........................................151 Purges at law faculties .................22ff., 25ff. R Real life and the real influence of socialist law ......................................45ff. Real policy ................................................129 Realist approach to judging .................... 83 Really existing facts .....................184 (n.101) Recht und Gesetz, difference between, See Law and statute, difference between Rechtsstaat ................................ 107, 120, 231 Référé legislative ................. 74 (n.37), 78, 137 Res judicata ............................221 (n.118), 235 Restatements of law .............................. 287 Revolt against formalism ...................... 232 Revolutionary conception of law ...49, 78ff. Rock music .........................................148ff. Rule of law........... xiv, xx, 19, 46, 65, 74, 81, .............. 84, 88, 107, 120, 163-164, 180, 201, ...................222, 231, 246, 249, 254, 260, 271 Rule-of-law state ....................164, 198, 260 Rules, unwritten .................................... 141 Ruling class......................................140-141

305 S Scientific planning .................................140 Scientifically planned prediction .........140 Selection of cases by the high court ...207, ................................................... 223-224, 233 Seymour-Smith case ......................... 283-284 Shootings at Berlin Wall cases.......151 (n.342) Simple cases ...................76, 84-85, 161, 184 Simple law .......................... 136 (n.280), 158 application of ................................... 281 interpretation of ...............................135 non-constitutional ................237 (n.273) Simple machinery ................................... 90 Simpler code (Russian versus German) ............92 (n.115) Simplification of law ................... 31ff., 45ff. Skoda Auto case ......................................270 Social conditions ................................... 225 Social engineering ...........4, 53, 97, 142 (n.309) Social life, elementary rules of ....................90 Socialism, really existing ............................. 127 Socialist civil code.................. 32 (n.40), 33 (n.45) civil procedure ...................................42 comparative law ............114, 127 (n.242) democracy .........................................135 jurisprudence, teachings, of ............201 legal conscience ............................... 119 legal culture ............................. 21ff., 107 legal family ....................................... 293 legal interpretation ..........................144 legality.................... 118ff., 131, 135, 156ff. life, simplicity of ................................48 morality ... 32 (n.44), 105, 107-108, 122, 141 normativism ............................ 63ff., 282 ombudsman .................................47, 119 substantive justice ........................... 154 Socialist law model ................................................ 127 pure theory/concept of ............ 113, 226 simplicity of ............................ 31, 45-46 Social policy ..................................................283 Soft law .................................................209, 286

306 Solange I case ................................... 276 (n.299) Solange II case .............................................. 276 Sources of law ...................39ff., 134-135, 144ff., .....................................................207ff., 231, 256 after the fall of Socialism ............ 207ff., .................................................... 210, 256 difference between binding and persuasive ................................ 271 during Socialism ................64, 70ff., 160 persuasive ............................210, 217, 271 Sovereignty............ 27, 276, 277 (n.310), 279 See also Parliamentary sovereignty Soviet legal theory .......................... 114, 159 Stalinism in Central Europe ......... 21, 26ff., ................................................. 28, 130ff., 157 Stalinist conception of law ............. 66, 94, ...................................................... 109, 132ff. inner contradiction ......................... 92ff. Stare decisis .................................83, 245, 262 State and law interaction between ............................ 91 theory of ........................80, 120, 137, 192 State arbitration ...................................37ff. Statistics, use in judicial reasoning .....283-285 Statutory interpretation ........................135 Students of law during Socialism ....... 49ff. Substantive fundamentality ......237 (n.270) Supreme councils of the judiciary.........181 Supreme courts ........................48, 120, 128, ............................129, 173, 191, 199, 218, 223, ...................................224, 233, 235, 263, 290 Supreme Court of Austria ...........................................144 of Czech Republic ............ 173, 179, 180, ...................... 206-208, 221, 223, 224-227, ........................239, 251-252, 258, 270, 272 of Czechoslovakia ............ 8ff., 27 (n.24), ........................40 (n.82), 42, 60, 98, 101, .................. 109-111, 116-118, 120, 123-125, ..............................144, 150, 154, 170, 272 of France ..............................................87 of Germany..........................................87 of Israel .................................... 193 (n.12) of Hungary.............................................8

The Judiciary in Central and Eastern Europe of Peru................................................ 188 of Poland .................56, 61, 99, 104, 108, ................................114-115, 117, 170, 174, ..................................236, 248, 253ff., 262 of Slovakia .... 144, 173, 195, 226 (n.130), 272 of USA............................................... 240 T Technical crisis ......................................140 Telephone justice law ....53, 62 (n.204), 124 Tertium non datur ................................ 72, 83 Textual positivism ........xix, xxi, 65ff., 75ff., ..............................88, 116ff., 145ff., 189-190, .......................... 194-195, 199ff., 227ff., 271ff. after the fall of Socialism ..............189ff. after the fall of Stalinism .......... 123, 126, .....................................................149, 158 criticism by the Czech Constitutional Court .....................194ff. Stalinist attitude toward................. 92ff. Textualism .............................................. 129 Transformation from capitalist and socialist society .......................... 141 Transplanting of law ..................41, 63, 142, ......................185, 189, 231, 237, 265-266, 271 See also Foreign powers, dictating alternatives and Foreign systems, solutions of Treaty of EU ......... 270, 271 (n.282), 274 (n.289), ......275 (n.295), 282-284, 287, 289 (n.347) of Lisbon ............................................279 of Rome .............................................270 of Trianon .............................................. 5 Truth real ......................................................183 material ............................................. 185 U Uniformity of judicial decisions ........... 219 Unity of high-court jurisprudence .............224 of the law ............................................... 5 of the traditional system ......... 33 (n.46) moral ..................................................... 9 Unwritten concepts ...............................146

Subject-Matter Index V Value reasoning ......................................230 Verfassungskonforme Auslegung See Constitutionally conforming interpretation W War communism in Russia .....................92 War of courts ......................................236ff.

307 Western traditions ................................266 Withering away of the state Marxist doctrine .............................90ff. Stalin’s position ....................... 93 (n.118) Working class........................ 95, 97 (n.132), ............................................ 102, 113, 118, 132

Index of Personal Names A Ajani, Gianmaria ............... 142 (n.309), 231 Alexy, Robert ................................84 (n.86) B Baade, Hans .............................................87 Balcerowicz, Leszek ..................... 164 (n.6) Barav, Ami .................................. 284 (n.331) Bierut, Bolesław ......................... 105 (n.165) Boguszak, Jiří ....38 (n.72), 118ff., 134 (n.271), ..................................................... 156 (n.356) Brezhnev, L.I. ............................. 144 (n.317) Bröstl, Alexander .........................176 (n.67) Brožová, Iva .........................227-228 (n.138) Bukharin, N.I. ........................................93 Burnham, W. ............................. 160 (n.368) Bystřina, I............................. 156-157 (n.357) C Čapek, J. ....................................134 (n.269), ....................137 (n.287 & n.290), 200 (n.43) Čepička, Alexej ........................................ 32 Collins, Hugh .............. 24 (n.10), 92 (n.116) Czapliński, Władysław ..........................267 D Damaška, Mirjan ...........153ff., 216, 232, 235 Danilenko, G.M........................ 160 (n.368) David, René ............................................ 64 Dawson, J.P.............. 78 (n.54, n.56 & n.58), ........................79 (n.59 & n.63), 127 (n.241), ........... 210 (n.74), 212 (n.81), 216, 233 (n.155) Dworkin, Ronald .......... 84 (n.88), 85 (n.91) E Emmert, Frank ........................... 210 (n.76) Engels, Friedrich........... 24 (n.9), 24 (n.10), ........................................89, 90, 106 (n.166) Eörsi, Gyula ..........5, 120 (n.220), 135, 138ff. Erdei, Árpád ..3 (n.13), 183, 184 (n.96 & n.97), ................................. 185 (n.102), 218 (n.106) F Fierlinger, Z............104 (n.160), 158 (n.363) Filemon, Boris ............ 191 (n.5), 205 (n.58), ..................................................... 273 (n.287)

Filip, Jan ....................................249 (n.209) Fleck, Zoltan...................23 (n.4), 34 (n.53), .................. 52 (n.143), 159 (n.364), 165 (n.9), ...................166 (n.15), 171 (n.44), 178 (n.77), ....................... 182 (n.92 & n.93), 238 (n.174) Frank, Hans ............................................108 Fremr, R. ..................................... 251 (n.215) Fučík, Julius .................................142 (n.311) G Gaidar, E.T. ................................... 164 (n.6) Garfield, A. .... 7 (n.27), 17 (n.82), 52 (n.142), ...................................131 (n.255), 144 (n.317) Garlicki, Lech .............................176 (n.67), .......................................233 (n.157), 243, 259 Gény, François ......................... 82 (n.77), 87 Gomułka, Władysław..............................29 Gostynski, Z. ..................7 (n.27), 17 (n.82), ................. 52 (n.142), 131 (n.255), 144 (n.317) Gottwald, Klement .......... 106 (n.166), 146 Grosswald, Curran Vivian... 77 (n.51), 146-147 Gruntorád, Jiří ....................................126ff. H Halmai, G. ... 193 (n.12), 247 (n.204), 265 (n.265) Harlan, John Marshall .......................... 240 Harmathy, Attila ..... 176 (n.67), 267 (n.269) Hart, H.L.A. ................107-108, 151 (n.343) Havel, Václav ..... xix, 21, 31, 45, 123 (n.234), ............................. 150, 155, 175 (n.64), 226ff. Hazard, John N. ................................64, 87 Hirschl, Ran .............................. 140 (n.301) Hohmann-Dennhardt, Christine...163 (n.3) Holländer, Pavel ................ 135, 145 (n.324), ................. 201, 224 (n.143), 241, 267 (n.269) Holmes, O.W. ........................................ 219 Hřebejk, J. .................................235 (n.160) I Ioffe, O.S. ................................... 144 (n.317) J Jhering, von, Rudolph ...................75 (n.45) Jozon, Monica ................................191 (n.6) Justinian.................................................... 33

310 K Kahn-Freund, O. ................................... 176 Kalinin, M.I. ............................ 194 (n.160) Kelsen, Hans ........ 8, 16, 24 (n.9), 25 (n.14), ......................80 (n.67), 89 (n.100 & n.103), ....................... 90 (n.106), 196ff., 262, 279ff. Kirchheimer, Otto ....................101 (n.148) Klaus, Václav ...................164 (n.6), 175 (n.64), ..................................................... 181 (n.88), 228 Klokočka, Vladimír .................... 176 (n.68) Knapp, Viktor ......... 25 (n.12), 30 (n.33), 63, ..............91, 95, 113, 118, 132, 136 (n.282), 143 Kohut, Sergej ............................... 195 (n.23) Kučera, E. .................................. 137 (n.289) Kulcsár, Kálmán....................................52ff. Kůrka, Vladimir.............................. 180-181 L Lasser, M. de S.-O.-l’E. ........................ 86ff. Lenin, V.I............ 24 (n.10), 65ff., 90ff., 144 Lyons, David ................ 71 (n.24), 76 (n.48), ...................................................... 207 (n.65) M MacLean, Roberto ................................ 188 Maduro, M.P............................................ 81 Mannheim, Karl .............................67 (n.4) Markovits, Inga S.................... 46, 102, 119, ................................................ 125, 155, 159ff. Marshall, John ........................................ 256 Marx, Karl ....... 24, 31, 106 (n.166), 133, 144 Mečiar, Vladimír .......................... 175 (n.63) Mikule, V. .............. 129 (n.250), 239 (n.177) Mikulec, V. .....................11 (n.51), 18 (n.86) Morshchakova, T.G. .................262 (n.254) N Němcová, O. .............................. 251 (n.215) O Orlando, Vittorio Emanuele ................ 193 P Pashukanis, E.B. ......... 65, 90-91, 93 (n.117) Pavlíček, Václav ....... 181 (n.88), 235 (n.160) Peczenik, Aleksander .................. 85 (n.89),

The Judiciary in Central and Eastern Europe .............................................. 136 (n.283), 217 Pelikánová, Irena ............................ 188-189 Pithart, Petr .................................. 30 (n.36) Pokol, B. ....135 (n.277), 208 (n.67), 209 (n.73), ......212 (n.83), 218 (n.103), 224 (n.125), 226 (n.131) Pound, Roscoe .......................................207 Přibáň, Jiří .......................... 101-102, 194 (n.11), ....................... 229 (n.143), 230 (n.145 & n.146), ......................................240 (n.279), 267 (n.169) Procházka, Radoslav ..........................xvi (n.5), .........................40 (n.82), 176 (n.69), 177 (n.74), ........194 (n.15, n.17 & n.20), 195 (n.22 & n.24), .................196 (n.28), 260, 266 (n.267 & n.268) R Radbruch, Gustav ............................81, 145 Rajk, László ..............................................26 Rákosi, Mátyás ........................................29 Reisner, Mikhail .....................91, 92 (n.112) Rodin, Siniša ...........................152, 191 (n.6) Rozmaryn, Stefan ...................... 253 (n.219) Rubeš, J. ...................... 290 (n.348 & n.352) Rychetský, Pavel ...........30 (n.36), 31 (n.37), ...................................207 (n.61), 273 (n.288) S Sadurski, Wojciech ......................xvi (n.6), ...................89 (n.100 & n.101), 120 (n.110), ................ 176 (n.62), 194 (n.11), 229 (n.142), .............233 (n.157), 234 (n.158), 245 (n.200), .......... 247 (n.204), 260 (n.249), 276 (n.299) Sajó, András ........xiii, xiv, xxi (n.10), 15 (n.67), ........................ 50 (n.136), 55 (n.166), 92 (n.112), ....................207 (n.64), 234 (n.158), 241 (n.184) Šamalík, F. ................................. 239 (n.176) Sanetra, Walerian ......... 174 (n.56), 235 (n.162), ................. 248 (n.208), 256 (n.234), 259 (n.242) Schmitt, Carl............................. 106 (n.167) Schwartz, Herman ................................ 260 Seifert, Jaroslav ...................................... 126 Siltala, Raimo ............... 74 (n.42), 75 (n.44) Skubiszewski, Krzysztof .......... 61 (n.203), ......................................................131 (n.254) Sládeček, V. .................... 19 (n.90 & n.94), ................................. 129 (n.250), 239 (n.177) Slánský, Rudolf ........................................26

Index of Personal Names Sólyom, László .......... 176 (n.67), 193 (n.14), .................... 198 (n.34), 234 (n.157), 263-264 Stalin, J.V. ................. 22, 24ff., 28, 34 (n.51), ............ 92ff., 95ff., 106 (n.166), 117, 124, 143 Stein, Eric................................................131 Stodůlka, Jiří ............................ 229 (n.140) Stone, Martin ............... 74 (n.42), 85 (n.90) Stuchka, P. ...............................91, 93 (n.117) Szabó, Imre ...........45, 94, 133, 141, 159, 293 T Terebilov, V.I. ..............28 (n.28), 54 (n.160) Timashev, N. ................................ 16 (n.76) Trotsky, Leon ...........................................93 Tumanov, V.A........91 (n.108), 140 (n.301), 142 Týč, Vladimir ............................. 271 (n.282) U Ulč, Ota .......................................154 (n.352) Unger, Roberto ....................... 72 (n.32), 74, ....................75 (n.43), 80 (n.65), 139 (n.299) V Varga, Csaba .......................122 (n.230), 207, ............................................... 264 (n.259), 282

311 Vyklický, Jan ................................179 (n.83) Vyshinsky, Andrei ....................93ff., 95, 132 W Wagnerová, Eliška .....172, 176 (n.68), 227, 230 Wasilewski, A. ............. 256 (n.234 & n.235) Weber, Max ........................................45, 68 Weinberger, Ota ............................30 (n.35) Weyr, František .................................... 8, 16 Wieacker, Franz .......................................88 Wróblewski, Jerzy........... 65ff., 106 (n.254), ..................130 (n.254), 136 (n.282), 147, 160 Wyrzykowski, Miroslaw ............. 213 (n.88) Z Ziembiński, Zygmunt ...............130 (n.254) Zirk-Sadowski, M. ....... xv (n.1), 174 (n.57), ....................................208 (n.69), 216 (n.97) Zeman, M. ...............................................xv Zoll, Andrzej .......................................... 257 Zupanžič, Boštjan ..............204, 229 (n.143)

About the Author Zdeněk Kühn is an Associate Professor at Charles University Law School, where he teaches legal theory, criminal law and human rights. He graduated from the Charles University Law School in 1997 and received his PhD degree there in 2001. He also holds a Master of Laws (LLM) and Science Juridical Doctor (SJD) degrees from the University of Michigan Law (2002 and 2006, respectively). He has been awarded several prizes including the Hessel Yntema Prize (Berkeley, California) for the best article by a scholar under forty years of age (published in the 2004 volume of the American Journal of Comparative Law, see below). In the fall of 2007, Professor Kühn was appointed by the Czech government to the European Court of Human Rights in Strasbourg to serve as an ad hoc justice in a highly profiled set of cases relating to rent control in the Czech Republic; in December 2007, he was appointed a Justice of the Supreme Administrative Court of the Czech Republic. He writes widely in the area of judicial methodology, comparative constitutional law and public law. Professor Kühn’s most important works in English include: (with Michal Bobek), “What About that ‘Incoming Tide?’ The Application of EU Law in the Czech Republic”, in: A. Lazowski (ed.), The Application of EU Law In The New Member States: Brave New World (TMC Asser Press, The Hague, 2010), 325-326; “The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/Acceptance: The EAW Saga as Narrated by the Constitutional Judiciary in Poland, Germany, and the Czech Republic”, 3 Croatian Yearbook of European Law & Policy (2007), 99-134; (with J. Kysela), “Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic”, 2 European Constitutional Law Review (2006), 183-208; “Comparative Law in Eastern Europe”, in: Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford University Press, 1st ed. 2006), 215-236, and “Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement”, 52 American Journal of Comparative Law (2004), 531-567.