BOJAN BILIC 1

Bojan Bilic

Second written work

Paper

Constitution as a symbol of (dis)continuity with the old regime in Eastern European

Transitions (excerpt)
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It has by now become almost platitudinous to argue that the dramatic collapse of

communism and the sudden wave of democratization that erupted in Central and Eastern

Europe as well as in the former Soviet Union in the post-1989 period, constitute a

watershed event in the recent European history. In this sense, Pridham (2001) claims that

the process of system change, enabled by the fall of socialist ideology, operated on an

unprecedented scale, given that the national cases of regime transformation outnumbered

all previous occasions of transition in Europe.

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In spite of the fact that the process of democratization taking place in Central and Eastern

Europe is characterized by a multitude of interrelated facets, all of which require specific

theoretical and methodological considerations, the present essay is particularly concerned

with the ways in which radical social action has been legally institutionalized in the

period immediately following regime change. More specifically, given that young post-

socialist democracies need the rule of law in order to justify the overthrow of the former

autocratic government, the essay explores the role which constitutions play in drawing a

legal and cultural boundary between the new (proto)democratic and the old regime. It is

argued that this is an important issue, first, because it is pressingly encountered by all the

countries that have been undergoing (or have, by now, finished) the process of

transformation from communism and authoritarian rule to capitalism and democracy in

Eastern Europe; and, second, more fundamentally, because it lies at the heart of how a
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group of people living at a certain territory establish themselves as a political entity

governed by durable legal rules.

Why do constitutions matter?

The idea of constitutionalism has been present in the Western European and American

political discourse since the sixteenth century, but its origins can be traced back to the

Middle Ages and antiquity. As an embodiment of people’s struggles for personal freedom

and efforts to avoid arbitrary political rule, constitutionalism indisputably represents one

of the most venerated and enduing features of liberal democratic theory (Schochet, 1979).

Without further expounding on the distinction between traditional and modern

constitutional doctrines and on different approaches to constitutionalism, suffice it to say

that constitutionalism essentially entails the reliance upon formal limitations on political

power which stems from popular sovereignty and which is nearly universally accepted in

the contemporary world (Preuss, 1996; Schochet, 1979). These formal limitations

represent either written or unwritten expression of the purposeful and public articulation

of a polity’s normative architecture that aims at confining power holders and ensures

protection against arbitrary or absolute rule (Walker, 1993). That is to say that

constitution, as a fundamental and foundational political act, embodies the totality of a

polity’s standards and practices and therefore, while forging a particular political identity,

establishes itself as an authority whose purpose is to regulate social life and provide a

legal basis for the functioning of societal institutions.

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In addition, when it comes to the relationship between constitutionalism and democracy,

Elster (1988) argues that constitutions’ functions are twofold: on the one hand, they are

supposed to protect individual rights while, on the other, they represent an obstacle to

certain political changes that, if it had not been for the constitution, would take place

either because they are desired by an oligarchy or the majority. A question therefore

arises as to why would a political assembly not only constrain its own prospective

actions, but actually set the rules for the generations to come. This question points to a

certain tension between democracy and constitutionalism since the constitutional

intention to impose a normative limit on state power might be at odds with the view that

the people are themselves the only legitimate source of law. For the purposes of the

current essay, however, the supposed conflict between constitutionalism and democracy

is resolved through the argument that constitutional constraints strengthen rather than

weaken democracy since they provide the institutional mechanisms for and thus facilitate

the democratic process (cf. Bellamy, 1996).

Communism in Eastern Europe – constitutions without constitutionalism

In spite of the fact that the previous section pointed to the nearly universal presence of

constitutions in the contemporary political systems, it would be erroneous to assume that

a mere existence of a constitution in either written or unwritten form necessarily implies

that the polity in question practices constitutionalism. There have been many cases in the

recent political history which demonstrate that constitutionalism is not possible without a

constitution, whereas constitutions do not in and of themselves require nor do they

automatically lead to constitutionalism. Thus it can be, rather intuitively, claimed that a
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state is not constituted solely on the basis of its positive legislature, but that this

legislature itself and its function to regulate the exercise of power, critically depend on its

social conditions and political culture.

Eastern Europe’s almost half a century of communist experience testifies to the fact that a

constitution can be turned into a meaningless document that is ignored by the country’s

leadership. Following the collapse of the communist power and a subsequent renewal of

the Polish constitutional tradition, Jan Rokita, a member of the Sejm, said the following

about the constitution adopted by the previous regime: “From the point of national honor,

the present constitution is an insult; from the point of law, it is a monstrosity and an

oddity; from the point of substantive politics, it is a document devoid of all meaning” (as

cited in Brzezinski, 1991, p. 49). It is clear that such a document, which, following the

amendments in 1976, even proclaimed Poland’s brotherhood with the Soviet Union, did

away with a long constitutional legacy stretching back into the twelfth century

(Brzezinski, 1991).

Although the countries in Eastern Europe and their paths to democracy differ in a number

of important ways, the case of Poland is used here only to illustrate that, as Elster, Offe

and Preuss (1998) argue, constitutions did not play a prominent role under communism.

The fact that there was no real constitutional significance is tightly related to the notion

of political freedom being at the heart of constitutionalism’s ideological and

philosophical principles. Given that, in general, political freedom did not rate high on the

communist leadership’s agenda, polity was constituted on the basis of one normative
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standard – that of the rule of one man or one group (communist party) – what completely

subverted the idea of constitutionalism. Dimitrijevic (2005) posits that, despite the fact

that communist Eastern European countries had a legislative structure that resembled the

one present in modern states, the Party was beyond the institutional framework of the

‘constitutional’ order having the status of a metaphysical sovereign free to determine the

scope of the state and law. It is for that reason that Walker (1991) refers to this

phenomenon as anticonstitutionalism. The following section takes a closer look at how

that state of affairs was dealt with in the post-1989 period.

Constitutions and velvet revolutions

Immediately upon the collapse of socialism in Eastern Europe, the new political elites

were confronted with numerous tasks, the most significant of which comprised

dismantling the legacies of the ancien régime. This excruciating process first and

foremost entailed the reestablishment of the rule of law in order to obtain legitimacy and

produce political stability. Many authors claim that, given that constitutions did not play

a significant role during communist rule, the reinvention of constitutionalism in the

region is in itself among the major accomplishment of the transitional process (Elster et

al., 1998). Moreover, constitution-making in the post-1989 period was perceived not only

as a legislative act, but as a symbol of political liberation as well as a revival of national

sovereignty (cf., Zubrzycki, 2001). It is, in that sense, apposite to mention that in his

book Reflections on the Revolution in Europe, Ralf Dahrendorf (1990) argues that the

abrupt regime change did not generate any new ideas, but above all meant a return to the

concepts of ordered civil society.

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Rather than expounding on individual country cases, the present section is primarily

concerned with the tension that arises between constitutionalism and revolution in the

context of Eastern European transitions. Whereas on the one hand, revolutions are

characterized by political unrest that might involve violence, constitutionalism is, on the

other, supposed to promote the political order. The crucial question then is how the

process of constitution-making harnesses and channels the revolutionary energies and to

what extent it capitalizes on them to solidify the desired social change. Transitional

constitutionalism has long-lasting effects since it aims at providing the legal platform on

which transition is to take place.

Moreover, a complementary issue has to do with the ways in which transitional

constitution-making takes into account and responds to past repressive rule. The passage

to democracy and its consolidation necessarily entail drawing a demarcation line between

the legacies of the past regime and the new (proto)democratic government. An official

recognition of the injustices is necessary, first, in order to acknowledge and satisfy the

victims of the repressive system and, second, to reconstruct a morally just order that

would encourage the public to embrace democratic values (cf., Huyse, 1995). This is

nicely captured by Ruti Teitel (1997) who argues that transitional constitutions are

simultaneously both backward- and forward-looking and, although appearing in different

processes and serving multiple roles, they should be informed by a conception of justice

which is distinctively transitional.

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The central tenet of the present essay deals with the idea, in modern times propounded by

Hannah Arendt (1963) and Bruce Ackerman (1992), that the constitution is supposed to

represent the climax of revolution and that the act of constitutional foundation is the

authentically revolutionary aspect of a radical social change. This rather normative view

is informed by American constitutional history in which constitution-making is perceived

as the foremost result of the revolution. Also, it elegantly resolves the dilemma of

constitutionalism in the context of massive political transformation by actually merging

the two in a unified whole.

However, although influential, this paradigm seems overly theoretical and therefore

unable to fully account for a wide range of challenges faced by the post-revolutionary

constitution-makers. It is debatable, particularly in the context of the Eastern European

transitions, to what extent constitution-making conceptualized as the act of the founding

of a new political order and a complete rupture from the past regime really corresponds to

both the legal possibilities as well as political ambitions of the new elites. In that sense,

Teitel (1997) offers a more realistic but, as will be shown also slightly pessimistic,

account of transitional constitutionalism which posits that in times of political

transformations, constitutions appear as documents with a substantive amount of

provisional and temporary measures. Furthermore, in contrast to the abovementioned

conception of constitutions as monolithic and enduring documents foundational to

solidifying social change, transitional constitutionalism is characterized by different

modalities in which constitutional continuity with the previous regime might be

preserved.
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An appropriate point of departure for an illustrative overview of some of the individual

cases would be to claim that the majority of countries in the region experienced various

constitutional modifications immediately after the collapse of the communist regimes. For

example, Croatia adopted its constitution as early as December 1990, Bulgaria in July

1991 and Romania and Slovenia in December of the same year (Elster et al., 1998).

In addition, the post-socialist constitutional paths of Hungary, Poland and the former

Czechoslovakia are somewhat idiosyncratic. More specifically, Hungary represents a rare

case of a long-lasting democratic constitution that was adopted by a non-democratically

elected parliament. This means that a new constitution was not created upon the collapse

of socialism, but the rules of the political game, primarily comprising a multi-party

system and free competitive elections, were brought about by a range of patchwork

amendments that in the end amounted to a wholly new document (created in 1990; Elster,

1991). In Poland the so-called Round Table Talks between the Solidarity and the

communist regime resulted in the 1992 adoption of the ‘Little Constitution’ which was

subsequently amended given that it did not fully satisfy either the Solidarity or the

political aspirations of the Catholic Church. In Czechoslovakia, not only was the

assembly elected in 1990 unsuccessful in adopting a new constitution, but it failed in

preserving the country’s integrity. However, following the separation, both republics

adopted new constitutions in 1992.

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This overly brief outline of the post-socialist constitutional developments in Eastern

Europe demonstrates that a substantive amount of constitutional activity took place upon

the communist regime collapse. The early constitution-making testifies to the political

elites’ awareness of the importance of this process which was not understood in purely

legal terms, but embodied the countries’ orientation towards democracy and the rule of

law as well as their wish to regain the lost sovereignty. On the other hand, it is true that

these new constitutions are often characterized with ambiguities and inconsistencies that

are at least partly due to concessions that the new elites were forced to make to the

members of the previous regime although the ‘residual’ extent of the Party’s popularity

after the collapse was in some cases overemphasized (Hungary, Poland).

It is, however, evident that the velvet revolutions lacked completely clean constitutional

breaks in the sense in which they are conceptualized by the foundational act paradigm

outlined above. In the state of post-revolutionary flux in which it is still not completely

sure whether the forces of the old regime might prevail, it would be unrealistic to position

the polity at the constitutional point zero from which its new constitutional order can be

constructed. Nevertheless, it would be equally problematic to, as Teitel (1997) does,

claim that in the context of Eastern European transitions the dilemma between

constitutionalism and political change disappears given that there is no discontinuity, but

only constitutional continuity.

As has been outlined above, in many countries of the region the collapse of communism

was immediately followed by constitution-making, albeit in different modalities and to

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different extent. Poland, Hungary, Czech Republic, Slovakia and Slovenia joined the

European Union in 2005 and were followed by Romania and Bulgaria in 2007. This

showed that the countries in question became consolidated electoral democracies in

which the return to authoritarianism is hardly probable. Although the current essay does

not specifically offer arguments that would substantiate the claim that democratization

success closely hinges on constitution-making, its tenet is that these early constitutions in

the Eastern European countries (that have by now finished their transition process and

entered the European Union) are reflective of the political consensus that was a

precondition for their subsequent prosperity (cf., Higley, Pakulski, & Wesolowski, 1998).
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