The Charisma of, Rationality in, and Legitimacy through Law A Neo-Weberian Analysis of Post-Communist Constitutionalism1

Christian Boulanger Ph.D. candidate Department of Political Science Free University Berlin, Germany c.boulanger@berlin.de Draft, 21 July 2001 Please quote only final version. Abstract: Max Weber's work belongs to the classic texts in socio-legal theory. But while most scholars praise Weber's contribution to the history of the discipline, few consider his work to be essential to understand the modern dynamics of legal change in a globalized world. In particular, scholars working in the framework of Rational Choice theory, autopoietic system theory (Luhman), and discourse theory (Habermas) think that Weber's perspective needs to be replaced by newer theories. In the recent rise of sociological/historical "new institutionalist" sociolegal studies, Weber is always present, but hardly ever mentioned. In my paper, I focus on three elements of Weber's sociology of law that have so far received only limited attention: Weber-inspired notions about the charisma of law, the rationality in law, and the legal aspect of democratic legitimacy. In order to show that these elements can contribute to contemporary research, I apply them to the emergence of judicial review in post-Communist Eastern Europe. The paper tries to combine three lines of literature: the sociology of law, American "law and courts" political science, and the "transition-to-democracy" literature. It argues that Weberian theory should be integrated in the new-institutionalist critiques of behavioralism.

Please send your comments to c.boulanger@berlin.de

Earlier versions of this paper were presented at the 2001 Law and Society Association and ISA RCSL Joint Meeting, Budapest, June 4-7, 2001 and at the Conference on Law and Social Theory, Wolfson College, University of Oxford, 14-15 December 2000.

Introduction
The recent rise of "new institutionalist" approaches in the socio-legal study of courts (Smith, 1988; Edelmann, et al., 1995; Clayton & Gillman, 1999; Gillman & Clayton, 1999) has led to a re-historicizing of the theory in two respects. First, the explanatory framework has broadened: No longer is the focus only on judicial attitudes (Segal & Spaeth, 1993) or judicial strategies (Epstein & Knight, 1998). Instead, scholars start to look anew to longs-term developments within the political and socio-economic context of courts and the legal system in order to explain particular outcomes (Gillman, 1999; Clayton & May, 1999). Second, the theory itself reflects on its own history and harks back to earlier thinking. There is a growing awareness that theoretically, there has not been a constant accumulation of knowledge by way of theory-testing and theory-refining. Instead, many of the insights of the socalled "new institutionalism" have already been pronounced by proponents of the "old institutionalism" (Clayton, 1999), before behavioralism threw the study of institutions overboard. One of the most important "old institutionalist" thinkers, I argue in this paper, is the German sociologist Max Weber (1864-1920). Much of what is "new" in the "New Institutionalism" can already be found in his writings. To be sure, Weber's sociology of law does not lend itself easily to be "applied" to empirical facts. His language often seems obscure and, due to the fragmentary nature of his writings (he died before he could finish his grand theoretical work), a theoretical framework that claims to be "Weberian" has to be reconstructed by each time one wants to make use of his insights for the analysis of socio-legal phenomena. This means that there is not one Weberian approach, but many. Interpretations of Weber's work varies considerably, and the one I advance in this paper is not necessarily shared by other students of Weber. Nonetheless, I would argue, there is enough agreement among "Weberians" and ample disagreement between "Weberians" and proponents of other socio-legal approaches to claim that a Weberian approach represents a distinct socio-legal "paradigm."2

I use Thomas Kuhn's (Kuhn, 1970) concept here to denote a meta-theoretical set of ontological and epistemological premises shared by a group of scholars. This framework determines, for example, what kind of questions are being asked, what evidence is considered valid, and limits the reach of the explanations. Kuhn's dialectical description of the development of the natural sciences as an alternation of periods of "normal science" with one accepted paradigm and

Other paradigms dispute central Weberian claims3: Rational choice theory rejects the notion that idea systems like legal dogmatics have an autonomous force and minimize the significance of value-oriented action (for example. see Ferejohn & Weingast, 1992). System theory, as radicalized by Luhmann and Teubner, on the contrary, accord almost absolute autonomy to the legal system, declaring it an operationally closed, "autopoietic" system (Luhmann, 1995; Teubner, 1989). In contrast to Weber, Luhmann thinks of "legitimacy" as an empty category. Since we cannot know what motivates obedience, Luhmann claims, we should not even try to find out. It is the procedure that legitimates authority in modern societies, not legality as such (Luhmann, 1969). Also, he replaces Weber's focus on action with the centrality of communication and point out that Weber's sociology of law is unable to deal with legal development in the increasingly complex post-industrial world. Habermas, too, criticizes Weber on the grounds of his theory of action. He finds fault with Weber's preoccupation with authority and obedience, and claims that Weber missed the communicative aspect of social life, which allows for a synthesis of democracy and the rule of law (Habermas, 1998). Postmodern legal theory, simular to Marxist notions, in turn, would agree with Weber that social life is about domination but rejects that it makes sense to talk of legitimate domination or to develop a concept of "rationality" in law. Law is not much more than rhetoric and story-telling, a way of disguising that law is just another form of politics (Hutchinson, 2000). Finally, behavioralist explanations that rely on quantified data and statistical analysis would reject Weberian interpretative accounts for their lack of "scientific" rigor and "hard facts" (Segal & Spaeth, 1993:1, see footnote 6). It is not my intention to argue that other social scientific paradigms than the Weberian are "wrong," or that Weber offers an all-encompassic social theory that can explain everything. I also do not claim that Weber's diagnosis of his time is still valid for today, or that all of his hypotheses can be empirically sustained. My claim is more

"scientific revolutions" has been criticized by historians and philosophers of science (see Gordon, 1991). It is certainly not applicable to the social sciences, where different paradigms coexist rather than supplaniting each other. See for a discussion of the use of the Weberian paradigm in the study of post-Communist transformations Sterbling & Zipprian, 1997; Burawoy, 2000. I owe my own inspiration to use the Weberian paradigm to Steven E. Hanson (see e.g. Hanson, 1997). Of course, Weber has also been criticized from other, less paradigmatic sources. Often, however, these criticisms are based on a misreading of Weber, which, in turn, is in many cases rooted in the reception of his writings in the Anglo-Saxon world through Talcott Parsons. For Parson's "creative misinterpretation" of Weber see Cohen, 1975.

modest: that his basic concepts and assumptions still help to illuminate present-day institutional change. My empirical case are the installation of Constitutional Courts in the aftermath of the fall of Leninism in Eastern Europe. Specifically, I my aim is to show how the Weberian concept of "Charisma," which cannot be covered by other paradigms, explains some of the developments of institutional change in the region. Also, the concept of "rationality" in law and the relation between Weber's three types of legitimacy and democracy will be discussed. Against scholars who claim that Weber ignored "democracy" as a fourth type of legitimate authority, I will try to show that Weber viewes "democracy" much more realistically than many contemporary theorists, among them many "transitologists." He argued that democratic legitimacy is empirically based on a combination of legal, charismatic, and traditional legitimacy. I am not the first to make the connection between Weberian thinking and the study of the role of Courts in democratization processes. Sara Schatz (1998) has already applied used this framework to analyze the Mexican Supreme Court's activity in the breakdown of authoritarian rule in Mexico. In this paper, I try to advance her effort to integrate the sociology of law, political science analyses of Constitutional Courts, and the "transition-to-democracy" literature, by more systematically discussing the Weberian concepts of charisma, rationality and legitimacy. Weberian thinking, I argue, allows for a synthesis of these approaches, and presents a much more specific theory than the broad label "new institutionalism."

I. Literature Review
Before I lay out my interpretation of Weberian theory, I first need to show why it is necessary to return to his thinking at all. I want to do this by pointing to what I perceive as deficiencies in three kinds of literatures mentioned above: studies on "transition to democracy and the market," theorizing about the establishments of Constitutional Courts in Eastern Europe in American "law and courts" political science, and the sociologico-historical "New Institutional" scholarship. Socio-legal Research on Eastern European Constitutional Courts One of the peculiarities of the literature on the transformation processes in the post-Communist political systems and societies of Central and Eastern Europe is that is has so far neglected the role of courts, including the role of the newly established constitutional courts. The most prominent earlier works on the post-Communist 3

transition (e.g. Przeworski, 1991; Di Palma, 1990; Linz & Stepan, 1996; Diamond & Plattner, 1996) have focused on political elites and civil society, the design of democratic institutions, and the dismantling of the planned economy. Courts are scarcely mentioned or analyzed (a partial exception is von Beyme, 1994:270-277). This task has so far been left to legal scholars, who focus traditionally on questions of the interpretation of constitutional provisions, legal doctrine and court decisions (e.g. Brunner, 1993a). Furthermore, no systematic effort has so far been made to analyze the role of courts in transformation processes in general (Schatz, 1998:217). This gap in the "transition-to-democracy" literature is surprising, since in other areas of research, much has already been written on the emergence, since the end of WW II, of courts as political actors. This "judicialization of politics" is not only demonstrated in the introduction and continuing rise of constitutional courts, but also in the growing importance of judicial review of administrative decisions in countries where constitutional courts do not exist (cf. Stone Sweet, 2000). This literature, in turn, has very scarcely tried to integrate itself within the larger field of socio-legal theory. This is shown by the latest book by Alec Stone Sweet, one of the most creative theorist of constitutional courts as political actors (Stone Sweet, 2000). While Stone does an excellent job summarizing the research on West European Constitutional Courts and the theoretical debate on courts in general - which he advances with his model of triadic dispute resolution -, there is hardly any reference to "classics" in the socio-legal field.4 This, of course, is due to the fact that Stone Sweet is a political scientist, and not a sociologist of law. Nonetheless, it is my claim that the political science analysis of courts has much to gain if it integrates insights from political sociology and the sociology of law. For example, in his discussion of the difference between "strategic" and "culturalist" analyses, Stone Sweet contrasts the Rational Choice paradigm, one one side, with all kinds of approaches that rely on notions of "culture," on the other. Here, I think, a more careful analysis is in order. The -mainly American - political science discussion about law and courts has so far centered on the Supreme Court. Lately, if one can believe the "Law & Courts"

He mentions Luhmann in one footnote.

newsletter of the APSA and its corresponding discussion ListServ5, there has been a "comparative turn," with many former Americanist theorists of courts looking abroad, i.e., mainly to Latin America and Eastern Europe. Here, recent articles by Shannon Ishiyama-Smithey and John Ishiyama (Ishiyama Smithey & Ishiyama, 2000) and Epstein, Knight and Shvetsova (Epstein, et al., 2000) show what kind of theoretical and methodological approaches are very influential in the general field. Ishiyama Smithey and Ishiyama are interested in the "design of judicial institutions in post-Communist politics." They want to account for the strength of courts according to their formal design in the constitutions. Their approach is a classical "behavorial" one: they specify the dependent variable, judicial power, on the one hand, and various independent variables (like economic performance, political culture, number of parties, ethnic heterogeneity, and previous judicial review) on the other. Then variables are coded according to data from 20 post-communist countries, and statistical correlations are established. I cannot discuss here whether the results are convincing or not. Comparative work of this kind is certainly very useful to gain a first overview of the cases, which would be difficult if one had to read narrative accounts of what has happened. I am skeptical, however, whether the correlation of coded variables can tell us much about a process of constitution-making which is influenced by foreign legal models, the non-availability of local constitutional experts, and pervasive ignorance of legislators about what constitutional review meant To really understand why constitution-makers chose a particular form of judicial review, it seems to me, one needs a process-oriented actor analysis. Also, and this is a points that relates to the question of paradigms, in order to put the results of statistical correlations into context, an overall theory about the interrelation of law and politics is necessary. The article by Epstein, Knight and Shvetsova does both - it names actors and provides a theory. The authors employ an approach developed in Epstein and Knight's book "The Choices Justices Make" (Epstein & Knight, 1998). They propose a model that "captures the role of courts in democratic societies" and can "generate testable propositions," based on the rationality assumption drawn from Rational Choice

Moderated by Howard Gillmann from the University of Southern California, this emaildiscussion list is an excellent source on the state-of-the-art of US-American debate on law & courts from a political scientific perspective. See http://www.artsci.wustl.edu/ ~polisci/lawcourt/listserv.html

theory: courts, presidents, and parliaments are modeled as strategic actors which act to further their preferences, namely implementing their "'most preferred positions,' over a given policy space, that is, the positions where they would ideally like to see government policy placed." I do not have the empirical knowledge necessary to discuss the merits of their conclusions since they apply their model to the Russian Constitutional Court. For my purpose, it suffices to note that Epstein et al. pay almost no attention to the peculiarities of the legal system of the country under study, statutes and legal theory that might affect the decisions and behavior of the court. On the contrary, their model is not "bound to any particular society." If one looks for a discussion on the significance of cultural influences, there are references to the lack of "reservoirs of public and political support" (p. 12) on the side of the courts, due to the relative novelty of the institution of a constitutional court after Communist legal nihilism. Also, the work of James L. Gibson and others (see for example Gibson & Caldeira, 1996), who record "legal culture" by means of public opinion surveys, is used to indicated factors outside the pure realm of strategic interaction. But there is no discussion of what role the peculiarities of the individual countries' actors, social forces and culture - whatever is meant by this concept - might play as intervening variables. The neglect of the latter concept is not surprising, since Rational Choice theorists assume that concepts like "ideology," "discourse," or "culture" are of little use in a world dominated by rationally motivated actors responding to the constraints of preexisting political, economic and social institutions. Institutions are seen as the "rules of the game," which structure, but do not influence, actor's preferences. The emergence of the sociologico-historical "New Institutionalism" It was exactly against this view of institutions that the sociological-historical version of the "New Institutionalism" reacted. Cornell W. Clayton has provided an excellent overview on the development of the study of public law in the United States (Clayton, 1999). He distinguishes three periods that I treat here in somewhat simplified form: "old institutionalism," behavioralism, and "new institutionalism." 1. Clayton calls the period from the late 19th century until the second world war the era of "old institutionalism," a time when lawyers dominated the field, and normative thinking was still present. According to Clayton, "old institutionalists" dissented from the then prevailing view "that the state, the economy, and society reflected human nature" and instead insisted that "these were constructed according to historically evolved patterns, which they called 6

institutions, that were themselves open to modification" through reflective judgement and wise legislative choices (Clayton, 1999:16, citing Ethington and McDonagh). Clayton discusses the Legal Realist movement in the section of "old institutionalism," but I would argue that authors like Jerome Frank cannot really be labelled "institutionalist," since they rejected the notion that law (in the sense of precedent and statute) had much influence on what lawyers actually did. Instead, law was simple redefined as what judges really did, and that had more to do with psychological and ideological factors than with legal institutions (Frank, 1930). What united the Legal Realists with those who took institutions more seriously, was that both used an interpretative method they attributed motivations to the actors in the legal system and accepted their and other scholars' interpretation as valid explanations, whether they agreed with their theories or not. 2. In the period after the second world war, the social sciences in general, and public law in particular, increasingly became dominated by the theory and methodology of behavioralism, which challenged this notion (see Murphy & Tanenhaus, 1972:18-20). Behavioralism had, among other things, two fundamental tenets which it inherited from positivism (Gordon, 1991:590-608): First, that political scientific analysis of law should "concern itself primarily, if not exclusively, with phenomena which can actually be observed" (Somit & Tanenhaus, 1982:177). This rules out interpretative accounts of human behavior, since according to behavioralists, "the attempt to explain social phenomena with the aid of mental concepts is an impermissible resort to elements that are unobservable and inexplicable" (Gordon, 1991:53). Second, while research should be "theory oriented and theory directed," the main data that should be used to for theory testing and theory refinement should be quantified (Somit & Tanenhaus, 1982:178). The implication for institutional analysis was that since the effect of institutions cannot be directly observed, they cannot constitute an "explanation" for social phenomena. One famous statement in this spirit was made by Robert Dahl in his "Preface to Democratic Theory," who stated that in American politics, [i]f constitutional factors are not entirely irrelevant, their significance is trivial as compared with the non-constitutional (Dahl, 1956:135). The well-known "Attitudinal Approach," first developed by Glendon Schubert and later brought to full bloom by Jeffrey A. Segal and Harold Spaeth (Segal & Spaeth, 1993; Spaeth & Segal, 1999), builds on the premises of Legal Realism. It focuses on 7

the creative judge, who is no longer imagined as Montesquieu's "mouthpiece of the law." At the same time, by adopting behavioralist methodology, it rejects interpretativism (both as a normative-legal and as a social scientific method).6 Judicial attitudes are measured "objectively" and quantified, and, according to Segal and Spaeth, convincingly explain the behavior of Supreme Court justices, without the need to refer to any "external" factors, such as the constitution, statutes, the behavior of congress, or values of the society. There are numerous shortcomings with this theory. First, the authors themselves have limited their reach to the American Supreme Court, and, more particularly, to the court's decision on the merits (Segal, 1999:238). Thus, their theory is unlikely to apply to most other American courts, not to speak of courts of other countries, which a) do not enjoy a simular degree of independence and b) whose judges have been selected to their office in a different way, for example, by pursuing a bureaucratic career. It should be clear that continental Civil Law judges, even those on Constitutional Courts, are socialized in a very different way than U.S. American Supreme Court judges. This is even more true for the Post-Communist area. Second, as Alec Stone Sweet has pointed out, if it is impossible to compile the data required by "attitudinalists," their model remains unhelpful (Stone Sweet, 2000:26) except maybe the now common-sense insight that judges are in some way influenced by personal ideologies. 3. More fundamental problems have been pointed out by the "New Insitutionalists" 7 . Rational choice institutionalists share the assumption that Judges want to see their policy preferences implemented. In contrast to attitudinal studies, however, they reject the notion that judges are single-minded seekers of policy. Rather Rational Choice institutionalists claim that justices act in a sophisticated fashion. While trying to stay as close as they can to their preferential position, they take into consideration that their fellow judges, other political institutions, or the public might intend to obstruct this goal (Epstein & Knight, 1998). As they rightly point out, judicial decisions are never the final word. Without the implementation by
6

Note the emphasis on their "scientific analysis," as opposed to those who "tend to discard science when the court is their subject" (Segal and Spaeth, 1993:1). Their claim to "grind no ideological axes" and to "allow the facts to speak for themselves" (ibid.) is a classically positivist stance, which, given the developments in the philosophy of science, can no longer seriously be maintained (See Gordon, 1991:590-608). For a description of new institutionalist approaches in general Koelble, 1995.

the legislative and executive branches, the courts' action remain meaningless (Ferejohn & Weingast, 1992). Interpretative institutionalists, on the other hand, agree with their Rational Choice colleagues that a focus on the court alone is unable to capture the complex process of constitutional adjucation. They tend to doubt, however, that formal modeling, to which both attitudinalists and Rational Choice theorists aspire, is an adequate approach at all. They reject, in particular, the Rational Choice notion that institutions are merely the rules according to which rational actors play the political or legal game. Instead, it is assumed that institutions "mean" something to political and legal actors, that they can change the preferences of those involved in them, that they themselves are, as Clayton notes, created within a received framework of culture and the socially constructed mind. Thus, institutions are not merely influenced by, but are inseparable from, the web of social patterns of cognitions and evaluation such as ideology, religion, class, race and gender that situates all social activity. (Clayton, 1999:33). I do not want to replicate the sometimes scholastic debate about whether or not Rational Choice assumptions are "true" or not.8 Actors within the legal system do certainly act strategic in some situations. In this case, game theory might provide some interesting insights. In other situations, strategic accounts might be less illuminating. And this is where I come back to Max Weber. The New Institutionalism and Weber Weber belongs to what Clayton calls the "old institutionalists." His is concerned with authority and order, obedience and coercion, the state and bureaucracy. At the same time, his sociology of religion, authority, and law goes beyond formal structures and the distribution of powers. His account of the historical emergence of the different religious, legal, political, and economical institutions stresses the same things that Roger Smith has claimed for the New Institutionalists, namely cognitive structures, such as patterns of rhetorical legitimation characteristic of certain traditions of political discourse or the sorts of associated values found in popular belief systems (Smith, 1988:91).

See Rostain, 2001, and the exchange between Gillman, 1997 and Epstein & Knight, 1997 for a recent discussion.

One famous example is his "Protestant Ethic and the Spirit of Capitalism" (Weber, 1976). Also his main work, "Economy and Society" (Weber, 1978) stresses this interrelationship between norms, patterns of meaning, institution, and human action.9 However, there is little reference to Weber in the works of New Institutionalists. Gillman and Clayton's two illuminating edited volumes on New Institutionalist studies of the Supreme Court (Clayton & Gillman, 1999; Gillman & Clayton, 1999) do not even mention his work in their comprehensive bibliographies. Clayton (1999:33) refers to Weber as a structural functionalist, which I think does not describe Weber's theoretical position adequately, but shows the continuing misreading of Weber in American scholarship initiated by Talcott Parsons.10 Howard Gillman, in his exchange with Lee Epstein and Jack Knight (Gillman, 1997; Epstein & Knight, 1997), mentions Weber only in passing (p. 8), even though his whole argument is heavily Weberian: he argues against the "judicial strategy" model which relies only on notions of instrumental rationality to claim that there is something like an institutional "mission" that guides the self-perception, but also the action of judges. Generally, German or other European socio-legal theorists are only marginally present in American Law & Courts theory, if at all. The historical sociology that gave rise to New Institutionalist scholarship skeptical of pure Rational Choice theory (Skocpol, 1984; Thelen & Steinmo, 1992) mentions Weber as one of its founding fathers. However, his theories are not often applied to contemporary problems. Now the question is if there is anything lost by not looking at Weber's work. Obviously, one cannot constantly invoke the whole historical development of the discipline in order to construct one's explanatory framework. I would argue, nonetheless, that there are good reasons to revive Weberian thinking in the socio-legal study of institutions. While the label "sociological/historical institutionalism" is very broad and therefore too unspecific, Weber presents a distinct paradigm that is worth exploring.

10

Whether Weber's specific hypothesisthat the ethos prevailing in protestant sects was the main determinant of the historical development of modern Capitalismcan be maintained or not is a different question. In fact, I think one of the least promising lines of inquiry is to apply his "Protestantism" thesis to contemporary Eastern Europe (but see Mattusch and Krasnodebski in Sterbling & Zipprian, 1997). My focus here is on his meta-theoretical assumptions and his middle-range theory of idealtypes and their causal relationship to empirical phenomena. See footnote 3.

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II. Weber as a paradigm: some aspects

It would be impossible to sketch the complexity of a Weberian approach in this paper, and even more so to try to contrast it to other paradigms in any systematic way. I also won't attempt to support my arguments on the basis of a textual Weberexegesis11, but will refer to a certain line of Weber-interpretation in the secondary literature (Breuer, 1991; Schroeder, 1992; Breuer, 1994; von Beyme, 1996; Schroeder, 1998; Schluchter, 1998). Scholars who use Weber to study the Communism and Post-Communism have put most attention to the study of regimes. The focus was so far on how the relation between rulers (the communist party) and staff (the bureaucracy) during Communism has influenced the nature of Communism itself or the nature of the Post-Communist order (Jowitt, 1992a; Hanson, 1997; Burawoy, 2000). Others have tried to probe the explanatory power of his Protestantism thesis (Sterbling & Zipprian, 1997)12. This paper goes into a slightly different direction, following Sara Schatz' (1998) effort to use Weberian concepts in the study of courts in transformation processes. In the following, I am going to present three Weberian concepts - charisma, rationality and legitimacy. My aim is threefold: First, they are meant to serve as representative elements of Weberian thinking. Second, in discussing them, I want to show how Weber differs from other paradigms. Finally, I am discussing the concepts in the light of their applicability to my "empirical data," i.e. the observable processes of democratization and constitutionalization in post-communist Eastern Europe. The theoretical and empirical enterprises do not match completely. On the one hand, I will discuss more "Weber" than I will apply to Eastern Europe, and on the other, not all empirical phenomena will be explained by Weberian thinking. However, as I have emphasized earlier, my project is not to elevate Weber to some kind of super-theory. All I am arguing is that he offers us many paths worth exploring that are not captured by current theorizing. Charisma of law 1. As many scholars note, few of Weber's terms have entered the realm of everyday language as his term "charisma," which had until his time been a theological
11

I refer in this text to the English translation of his writings assembled by Guenther Roth and Claus Wittich (Weber, 1978) as far as I have them on file, otherwise to the German originals.

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term, noting the endowment of certain individuals with spiritual powers (Smith, 1998). Charisma is thought to reside only in the personality of individuals. Charismatics are those who can by their impressive appearance and as gifted speakers, convince their audience and assemble a powerful group of loyal followers. Weber's concept, however, is much more multifaceted. While he does refer to the charismatic individual (the berserk, the warrior, the prophet, the charismatic politician) (Weber, 1978: 239-247), his main interest is not in the character of the charismatic, but with their message. As Ralph Schroeder points out, the "concept of charisma is used essentially to explain the origin of new systems of ideas" (Schroeder, 1992:9). It is an important element of Weber's theory of social change, which is founded on the idea that human beings usually resists change (cf. Roth, 1987:138). In his sociology of authority, to which I will return later, he contrasts, as it is well known, charismatic sources of legitimate authority with traditional and legal modes of legitimation, which are both backwards-looking: to the belief in the "sanctity of ageold rules and powers" (Weber, 1978:I, 226) or to the belief in the "legality of enacted rules and the right of those elevated to authority under such rules to issue commands" (I, 215). Charisma for Weber, has been one of the great revolutionary forces in history. He explicitly mentions the transformative force of charisma in periods of traditionalist rule (p. 245). However, as his references to the concept in the rest of his work show, his theory of charisma does not stop there. Charisma can undermine the working of legal-bureaucratic institutions as well.13 That Weber thinks of Charisma not only as a personal gift becomes clear in his discussion of the "routinization of charisma": Charisma as a 'dynamic' cultural force is inherently instable and its impact bound to diminish with time. It looses its extra-ordinary14 quality and the charismatic belief-systems becomes well-established and integrated within everyday life (Schroeder, 1992:10-11). To summarize Weber's quite complicated argument very roughly, the charisma either becomes the new tradition, or is coded and systematized into a new legal-bureaucratic regime. Both processes imply an adaptation of the charismatic mission to the material needs of the followers and the dominating staff

12 13

14

See footnote 9. Weber's discussion of the need for charismatic politicians countering the oppressive nature of the bureaucratized state shows this. His normative conclusions are debatable, but here the point that charisma has the force to destabilize legal authority. "aueralltglich" is Weber's term here.

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(Weber, 1978:246 and following). Finally, Weber's distinction between the personal and the impersonal routinization of Charisma is important here. While the former entails the transfer of charisma to a successor, the impersonal routinization (Versachlichung) of Charisma transfers it to a lineage, an institution (e.g. the church), an office (e.g. the king), or an idea (for example, the nation). (Weber 1980: 654-681). In other words, the stronger the appeal of the charismatic vision, the transformative idea itself, the "mission," as Weber called it, the less important is the personal charisma of the "prophet," and the more likely it is that the charismatic force can be transferred to impersonal institutions. 2. I think it is obvious that Weber's concept of Charisma contradicts basic assumptions of other paradigms. It clashes with Neo-Marxist and Rational Choice approaches in as much as it presupposes a substantial autonomy of idea systems that are not reducible to material interests, neither of social classes, nor of strategically acting individuals. It is not just "ideology" in the Marxist sense, a reflection of existing power relations.15 Charisma, for Weber, can forcefully transcend everyday interests, it is specifically "wirtschaftsfremd" - foreign to economic considerations (1978:244). The origins of the charismatic "mission" can have socio-economic roots, and the routinization of charisma is closesly connected with material interests.16 But Weber insists that ideas have their own independent force. Not all Rational Choice theorists would reject this argument. Indeed, recently there has been a lively discussion about the significance of culture among Rational Choice theorists. 17 The question for them, however, is how "cultural norms" or how "ideology" facilitates cooperation or punishment of deviance among rationally acting individuals. The focus is not on how idea system change people's preferences. Weber, in contrast, conceives the force of charisma to work "from without: by altering the situations of life and

15

16

17

The term "ideology" is understood differently by authors working in the Weberian tradition. While Schroeder (1992:155) rejects the use of the term to denote Weberian idea systems because of its association with Marxist thinking, Stephen E. Hanson has used the term to analyze Marxist conceptions of time from a Weberian perspective. See Hanson, 1997. The second point is made explicitly (Weber, 1980: 146-147). Weber has been rightly critized for the lack of discussion of socio-economic foundations of his theory of legitimate domination (Breuer, 1991: 20-23), which gives his theory a seemingly "idealist" bias. This does not at all mean, however, that Weber rejected materialist explanations tout court . He acknowledged their explanatory potential and merely rejected their totalizing claims. See Weber, 1988b:166, Kocka, 1986: 12. See for example, Greif, 1994; Weingast, 1997; Sutter, 1998.

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hence its problems, finally in this way changing men's attitudes towards them" (1978:245). As far as I understand him, Habermas would claim that charismatic irrationality is foreign to constitutional democracies, in which the Rechtsstaat and democracy have been wedded together (Habermas, 1994; Habermas, 1998). As I will argue later, Weber's conception of democracy involves a charismatic moment: the utopian belief in popular sovereignty which is obviously contradicted by the fact of legalbureaucratic administration of the citizenry. Finally, the concept does also not side well with Luhmann's modell, derived from radicalized evolutionary ideas of Durkheim and Parsons, of an increasingly differentiated world with closed systems of meaning. As Schroeder points out, Weber thinks that new idea systems tend to transcend all spheres of life (1992:10). Weber's inclusion in his theory of the charismatic actor - which is, as I have argued, not the focus, but an essential feature of his thinking - must alienate system theorists who have relegated action and people to the margins of the theory, namely to the environment of the system. 3. While a superficial reading of Weber's writings might suggest that law and charisma are antithetical - since rational-legal and charismatic legitimacy are two different ideal-typical forms of domination, this is not what Weber is arguing. First of all, a point that is more clearly spelled out, the different forms of authority can be found in mixed form in reality, sometimes reinforcing, sometimes weaking each other (Weber, 1978:216, Weber, 1988a:191). But Weber goes beyond that and talks about specifically "charismatic law." One element of this is the charismatic creation of law that for Weber is the historic origin of the creation of positive bodies of law (Weber, 1980:446). This charismatic law is irrational as far as it is not deduced logically from some higher body of principles. I will return to value-rational law in the next section, which Weber calls "erschlossenes Recht" (conceived law). Charismatic law, by contrast, is "revealed" law ("offenbartes Recht"). This law has a special extraordinary character which is thought to be legitimate even without rational justification. I will argue later that what Constitutional Courts were offering to post-communist societies with hardly any knowledge of Constitutionalism, was this sort of charismatic law. 5. A weakness of Weber's concept of Charisma can be inferred from a criticism of Weber's general theory which has been expressed by sociological Phenomenology (Berger & Luckmann, 1966). According to these critics, Weber has not dealt 14

adequately with the problem how meaning is constructed. Instead, he takes meaning systems as given. This criticism has to be taken seriously also when trying to use the concept of charisma. Particular charismatic individuals or messages who had an amazing impact on social or political developments in a certain place or time might be ignored in a different temporal or special environment. 18 That means that when analyzing the force of Charisma, we have to take into account that what participants might perceive as charismatic is socially and culturally "constructed" reality. Rationality in law 1. Weber's concept of "rationality" has been the object of much criticism and misinterpretation. Part of the fault lies with his often ambiguous usage of the term that is never really defined. Instead, its meaning has to be gathered from the usage in different word combinations like value-rationality (Wertrationalitt), instrumentalrationality (Zweckrationalitt), formal rationality and material rationality. While it can be easily understood that way, rationality is not, for Weber, a normative concept - the same is true for his understanding of "legitimacy," as we will later see. If he terms a certain institution or action as "rational," he means that the participants themselves perceive the institution, or action as rational, i.e. as a social phenomena that refers to reason - and not to relevation or tradition - in order to weigh means and ends. To be sure, the participants of a certain discourse will not necessarily use the terms "rationality" or "irrationality" themselves. These concepts are, as Weber emphasizes, created -- idealtypes that only serve to explain the otherwise incomprehensible chaos of the empirical world. Weber calls this method, as it is well known, "verstehende Soziologie" (Weber, 1988b: 427-474). As Stephen E. Hanson has summarized this point in his discussion of Weberian ideal types of action, It is the verstehen approach that distinguishes Weberian methodological individualism from that of the Rational Choice or neoclassical economic school, since the latter rejects the importance of understanding subjective motivations and instead assumes that all individual action can be analyzed as some variant of utility-maximizing behavior (Hanson, 1997: 10) If he terms something "irrational," Weber does not make a evaluative statement either. Weber is a "normative skeptic" - he does not belief that the decision between fundamentally different system of values is a matter of reason. Weber defines an action as irrational if the motivation of this action does not include weighing means
18

Think of Adolf Hitler in contemporary Germany.

15

and/or ends. Instead, the source could be, for example, divine inspiration, the sacred tradition, or emotion. In sum, Weber's understanding of "rationality" does not refer to content of an institution, or decision, but to the way this institution works, or the decision is reached (See Habermas, 1999: 239-261). As it is well known, for Weber rationality can refer to values (Wertrationalitt), i.e. only the means are chosen, or it is purely instrumental (Zweckrationalitt), then means and ends are undetermined and weighed against each other, for example, to maximize power or money. Interest maximization itself, however, cannot be a value in Weber's model. As Habermas writes, "Interests can change, while generalized values are valid for more than one type of situation."19 He point out that in a Weberian perspective, it is impossible to elevate the doctrine of utilitarism to "the status and the productivity of an ethic which is guided by principles" (1999:244, my translation). I discuss Weber's typology of motivations of actions not in order to claim that they provide an adequate model of action for general sociology. Habermas and others have rightly pointed out that Weber's model neglects the interactive and communicative dimensions of human agency. The point, for me, is that first, this typology offers a shortcut to the claim that norms to influence human behavior in more ways than Rational Choice theory suggests. Second, Weber's typologies allowed him to construct hypotheses on the ground of his historical material which we might also be able to use in looking at more recent phenomena. 2. For Weber, law is "an order with specific guarantees for the possibility of its empirical validity (Weber 1978:182). This guarantee is brought about by the possibility of (physical or psychological) coercion through action by a staff of people specifically created for the maintance of the order or the punishment of violations of this order (Weber 1980:17, my translation). This has lead many scholars to believe that Weber is proposing a coercive theory of law, i.e., that law is a system of rules backed up by state power. While Weber clearly thinks that for most occasions, this is a realistic description of law, the coercion theory does not exhaust his concept of law (Krawietz, 1988). The fact alone that Weber talks of rational-legal legitimacy, and describes cases of "charismatic" law and law-application, should show that an understanding of Weber as a mere theorist

19

For this fundamental methodological reason survey data is often misleading, since it confuses "values" with "ideas"; the latter being consistent while situations change, the former often only expressing temporary orientations.

16

of coercion is mistaken. Modern Law, as an empirical and historical phenomenon, comprises for Weber several elements: a) a dominant legal thought (Rechtsdenken) in which at least some people really believe, which is, however, constantly fought over and transformed. This legal thought results in a specific kind of jurisprudence. b) a body of norms which have been codified or exist as precedents, which can be consistent or conflicting with legal thought. c) a legal staff, which Weber describes narrowly as those who are engaged in producing, adjucating, and enforcing a certain vision of the law, but which, I think, could be defined broader without violation of his premises. 3. In law, Weber saw two fundamentally antagonistic directions. He makes a distinction between "formal" law - i.e. norms logically deduced from the law itself and "substantive" law (materiales Recht), that is, jurisprudence based on ultimate values.20 Whether such a distinction is reflects the "true" nature of law is arguable. A "pure theory of law" in the spirit of Kelsen is sociologically not credible. However, as Feldman (Feldman, 1991) has emphasized, Weber's analysis is internal: he is talking about the self-understanding of the people producing and adjucating law, the legal thought of a specific time and place. Unlike Marxist (or critical legal), Rational Choice and behavioralist theorists, however, he does not reduce these structures to results of class structure or interest group struggle, but concedes them a certain autonomy and inner logic. In opposition to Luhmann, who thinks of the legal system as a system of communication coded in the binary opposition between "Recht" and "Unrecht," Weber looks at the people who have to do with law: priests, chiefs, kings, parlamentarians, lawyers, professors of law, judges, bureaucrats, and analyzes their "worldview" and their socioeconomic interests. Specifically, his claim is that modern law is trapped between formal and substantive rationality. Formal rationality emphasizes process and positive law, thereby increasing the calculability of the legal process. At the same time, this abstract application of norms to cases might result in a violating elementary needs and principles of substantive justice. Material rationality, on the other hand, which is

20

His terminology is extremely confusing, since he differentiates a formal ("formell") and substantive ("materiell") aspect of law, with which he means process and basis of decision. The material aspect of law is then differentiated in formal and substantive ("formal" und "material") jurisprudence (cf. Quensel, 1997). I am refering to the latter distinction here.

17

informed by ethical considerations21 about the result of legal application, can violate the logic consistency and calculability of legal rules, since they loose their abstract character. For him, the purest form of a value-rational law is "Natural Law," which has to be differentiated from forms of tranditional, charismatic, and positive law. It is rational in as far as natural law is produced by a process of deliberation about, for example, the true "nature of man"; it is reconstructed or conceived ("erschlossenes Recht") (Weber 1980:19). That is to say: the more formal rational jurisprudence becomes, the more it is bound to be substantively irrational and vice versa. Formal rationality, for Weber, is one of the cornerstones of the capitalist economy, which is dependent on the foreseeability of the legal process and the enforcement of contracts (See Weber 1978:333-337). It has therefore always been a central concern of the rising bourgeoisie. On the other side, Weber forsaw the anti-formal tendencies of legal development inherent in the rise of the welfare state, which, in the name of social justice, incresingly abandoned general-abstract rules in favor of sweeping power delegations to the welfare bureaucracy. (Weber, 1922: 507-513). If we take this conceptual opposition seriously, we can expect to find it in the jurisprudence of Constitutional Courts as well, both in established Western Democracies and in newly democratizing countries. Sara Schatz (1998) has made this argument for the Mexican case.22 She argues (p. 218) that the democratizing effort to promote abstract justice through greater judicial review of legislation by supreme courts must be understood as a slow rationalizing effort riddled with the tension between formal and substantive rationality. She applies the formal-substantive opposition to differentiate legal formalism, introduced to the political field by extended judicial review powers of the Mexican Supreme Court, from the case-by-case informal justice that characterizes the arbitrary decision-making power of the political elite in the executive and legislative. However, the same opposition can be found within constitutional jurisprudence. Judicial selfrestraint can be expressed in the language of positivist-formal rationality, while

21

22

One has to keep in mind that "ethics" has to be understood sociologically, not philosophically. The case of Nazi jurists, who deformed positive law in the name of a racist ideology is a case in point. See Bernd Rthers, Die unbegrenzte Auslegung. Zum Wandel der Privatrechtsordnung im Nationalsozialismus. Heidelberg: Juristischer Verlag Mller (5th ed. 1997). Another very interesting point she takes from Weber is the problem of constitutional "gaps", areas unregulated by the constitution which serve as holdouts of executive discretionary power

18

"natural law" activism might be based on notions of substantive justice. This is an element of Weberian thinking that certainly needs further elaboration. Democratic Legitimacy through Law Finally, I want to turn to Weber's concept of legitimacy. It is in this context that I also want to discuss his treatment of the concept of democracy 1. As has often been noted, the usage of those concepts is not very clear in his work, and consequently has been misunderstood by many scholars. There is one underlying premise in the whole body of his writing that needs to be taken into account when trying to make use of his concepts and theories: Weber's sociology is fundamentally about the relationship of authority, order, and the state. It is, as Stefan Breuer points out, not a useful instrument for a 'history from below'. But, of course, it was never intended to be. It focuses on cases where domination is successfully achieved and attempts to determine the forms in which this occurs (Breuer, 1998:3). Weber's insistence on the importance of the state, which is for him a form of organized violence (the monopoly of legitimate coercion), does not make him a supporter of the authoritarian state, as it is often claimed. Instead, he recognizes that without working state structures, democracy and the rule of law are impossible to institutionalize. This is an insight that was rediscovered in the works of Theda Skcopol, Charles Tilly, and Michael Mann, who have provided a state-driven theory of democratization, after a long period of behavioral or Neo-Marxist dominance in the analysis of the state (cf. Collins, 1998:15). And it is my claim that it is exactly this insight which is painfully missing in many analyses of the "transition-to-democracy" in many parts of the world. Often, the focus is on political actors, civil society, or a political culture hospitable or inhospitable to political democracy. Weber's view is different: he emphasizes that any rule is built on violence, since there will inevitably be groups which will try to change the structure of the regime, and who will, by force, be prevented from doing so. The question then turns to the stability of the state and/or the regime. Here, Weber offers a macro-sociology of regime stability (his "Herrschaftsoziologie"). 2. Weber claims that any regime that is solely based on force is inherently unstable (1978:212-215). In order to endure, the ruler (which can be one person or a multitude of persons, i.e. government and parliament) has to base their claim to obedience by the staff (the administration, police etc.) on some legitimate grounds. Here, again, the 19

"legitimacy" of any type of regime is not a moral, but an empirical category. It is not the observer who determines the "legitimacy" of a given type of rule. Instead Weber developed the grounds on which "the validity of the claims to legitimacy" (217) have successfully been based in a historical-inductive manner, even leaving room for other types that might be added (216). 3. Why, then, did Weber not add "democratic legitimacy" to the three types of legitimate authority, as indeed he pondered for short time? (Breuer, 1998:2). Weber was an value-conservative liberal, and, at the latest after the turn of the century, a true supporter of parliamentary democracy. Even if he failed to produce a coherent sociological account of the nature of democracy, it was not because he did not know how to analyze democracy as a regime type. Instead, he recognized that "democracy" has historically appeared in forms that were based on very different types of legitimacy claims. At the basis of Weber's notion of democracy is his assumption that the idea of democracy is a challenge to order, and therefore an "illegitimate" in the eyes of existing power-holders. Weber's unorthodox account of the historical emergence of the idea of democracy is that the democratic principle was a "anti-authoritarian reinterpretation of charisma." His historical illustration is the election of rulers such as the German Emperor. These elections were not thought to be a choice of a representative which was in any sense accountable to the electorate. Instead, it was the proclamation of a ruler to a traditionally or charismatically legitimated position from which he was entitled to obedience from those who had elected him (or in some cases: her). Only through a transformation, the reasons and development of which Weber specifies only vaguely, the process of election takes on the meaning that we think self-evident: that the election of the ruler is the reason for his or her elevation to a position from which he or she can issue commands (Weber 1980:155-157). Weber dismissed Rousseauian concepts of democracy as "the will of the people" (cf. Breuer, 1998:7). "True" democracy could only be thought of as a constant plebiscite, which would be so instable and so ineffective that it would break down in a short period of time. Once the community is larger than a village or a town in which everybody knows everybody else, the principle of "democracy" stops generating any undisputed forms of organization. Instead, it has to be translated into legal rules of representation and procedure, which could always be different and are therefore arbitrary. It suffices to look at the widely different forms of election laws. But, even 20

though he rejected as later Schumpeterthe Rousseauian theory of democracy as an adequate description he took the beliefs of people about democracy seriously. Democracy can be seen a) as a charismatic idea, with subversive effect against authoritarian forms of government, or b) as a regulative idea which legitimizes the regime once it is established. Weber would argue, nevertheless, that the political order, i.e., the relationship between the citizen and the state, or more precise: the bureaucratic administration of everyday life is still controlled by legal legitimacy. Weber's point is sociological and, I would argue, quite realistic: governing is above all administration, which does not, for the most part, work on democratic principles. In sum, in the modern state, even if elections provide the basis of the regular replacement of officials, the functioning of the machinery of the state is based on legal legitimacy. And that is why democracy in the modern period had to be representative democracy: enough structure and order to function effectively, but also with elements of anti-structure: limited terms of office, repeated election and accountability of office holders. This, of course cannot serve as the basis of a normative concept of democracy, as many critics of Weber have rightly observed (Habermas, 1998). However, Weber never claimed to be a theorist of democracy. Instead, he wanted to provide a sober account of the sociological underpinnings of any form of regime, thereby specifying the "real-world" limitations to possible visions of democratic theory.

III. Charisma, rationality and legitimacy: a Weberian analysis of post-Communist Constitutionalism

After this short exposition of a Weberian thinking or at least how I read Weber - , I turn to the analysis of legal change in post-Communist societies. I specifically look at three case studies: Poland, Hungary and Slovakia. Since all of the three cases are part of Central Eastern Europe, they are not representative of Eastern Europe, let alone all post-Communist Countries. I use the empirical data as illustration, not as test cases for rigid theory-testing. What would the approach sketched above expect to find empirically in these societies, and how would it explain the phenomena? What is a Weberian theory of post-Communist Constitutionalism? Three periods present themselves for empirical scrutiny: First, the peculiarities of the former regime, concerning type of legitimacy, legal ideology, legal rules, and

21

legal staff, resulting in a country - specific socio-legal legacy. Second, the way the former regime broke down, and what implications this had for the three elements of Weber's notion of law. Finally, the modes of legitimacy in the new regime and the transformation of the legal sphere since the establishment of the new regime, again with a focus on the development of jurisprudence, positive law, and legal professionals, and their relation to social and cultural developments. There are two shortcomings of Weber's work that have to be mentioned in this context. One extremely important element of post-Communist legal development is external to the objects of scrutiny mentioned before: the influence of international actors on post-Communist legal development. The enormous impact of transfers of law through foreign legal advisers, International Convenants, and, most importantly, of the body of European law that future members of the EU have to incorporate, can hardly be overestimated (Heydebrand, 1995; Hland, 1993; Hland, 2001). On this subject, Weber provides few clues other than his descriptive historical account on how the roman law was received in continental Europe. He was not at all a theorist of legal globalization. A Weberian analysis can only deal with the internal consequences of these international influences, and, therefore has to be supplemented with other approaches. The other element of modern social life that Weber did not treat adequately is the impact of the mass media on ruler and staff. In Weber's time, there was no television or radio, and the printed press was slow to react and much less circulated than in the second half of the century. Government and the bureaucracy enjoyed a fairly high advantage in the acquisition and dissemination of information, which is crucial for the successful monopolization of power. Authoritarian systems, including the Communist regimes, are quite close to this situation, the regime having even more control over the media. In modern pluralist regimes with any degree of free mass media, especially in the age of the internet, it is debatable whether the government enjoys this advantage any longer. In "television democracies," the link between ruler(s) and the masses becomes much more direct than Weber himself imagined. 23 On the other hand, Weberian thinking could be a corrective to two types of theorizing: to idealistic Habermasian visions of a "public sphere" in which debates over policy can be rationally discussed, and, on the side, nightmares of the "mass society" which are
23

Specifically on media theory and post-Communism, see Downing, 1996.

22

prone to fall prey to authoritarian leaders (Hanna Arendt). I argue that one of Weber's main theses is still applicable today: that the "ethos" of the "staff" - the administrative bureaucracy and the political elite - is one of the main determinants of regime stability. The political and legal system of Leninism In the following, I want to provide, first, an brief ideal-typical, neo-Weberian interpretation of Leninism which does not reflect the temporal/spacial diversity of Communist regimes. Then I sketch out what differentiated Poland, Hungary, and Slovakia in the period of late Communism. 1. For Weber, communism as an idea with specifically pre-rational structures (Breuer, 1994:84-90). According to him, this utopian ideology, which deliberatedly disregarded the modern rationalization of economy, politics and culture might just have had enough charisma to topple the old patrimonial regime. Weber did not expect the rule of revolutionary government to last very long. That soviet regimes persisted, the majority until 1989/1990, some of them in mutated form until this day, has always presented a puzzle to Weberian scholars. Some have concluded that it was Lenin's personal charisma plus the charisma of Communism as a revolutionary, utopian ideology that helped provided the energy to install and maintain the new system. Others, in particular Ken Jowitt, arguing that Lenin was less a charismatic than a genius organizer and bureaucrat, have attributed the force of Charisma to the organization Lenin constructed and placed in a position of nearly absolute power: the Bolschewik party. The party, Jowitt argues, has to be understood as an instance of "charismatic impersonality," which combines individual heroism and modern, rational bureaucratic rule: the Party represented a novel type of "organizational heroism" (Jowitt, 1992b). In this interpretation, the decline of Communism after the end of the pseudo-charismatic and terror-based Stalinist period, has to be understood as a slow withering away of any form of charismatic legitimacy, leaving only a weak neotraditional legitimation of a corrupt redistribution system. Beside this weak legitimacy, there was only illegitimate repression and instrumentally-rational enrichment, both instable forms of regime maintenance. 2. The nature of law under communism has been discussed in much detail (for example, see Huskey, 1992; Podgrecki & Olgiati, 1996). Even though there was much formal law "on the books," this law was not thought to be binding on party rule. 23

Instead, the law was supposed to be the order of the sovereign, the proletariat, as revealed by the party, with the ultimate aim of establishing Communism, a society in which there would be complete social justice. In a Weberian interpretation, I think, one has to differentiate two levels of the legal process: the level of law-making and law-application, and two forms of rationality, value-rationality and instrumental rationality. a. law -making was substantively rational as long it referred to the establishment of "social justice," and substantively irrational, indeed solely instrumentally rational as long as it was used as an instrument of power to suppress dissent. For the most part, it was formally irrational and indeed can be considered as some kind of charismatic "relevation" by the party who acted as a "prophet of the coming of communism." The body of positive law, of course, did not reflect the real inequalities of life, in which a privileged strata of party professionals enjoyed enormous privileges at the expense of the broad population. Much of the law-making can be regarded "window-dressing" and did not reflect the informal practices of power. b. law application was characteristically formally irrational. The party had, if it was interested, the final word, and could intervene in any stage of the legal process. That does not deny islands of formal rationality, in which law application followed rational procedures, for example, in family law (Markovits, 1982). Indeed, the system typically produced judges who clinged to the written law as long as there was no contradicting directive from above. In political cases, the application of law was both formally and substantially irrational, since the process was motivated by the pure instrumentally-rational need to suppress political opponents. 3. Compared with this idealtypical blueprint of Communist law, empirical research has shown some important differences between Communist countries. In Hungary, for example, the Communist take-over could not totally extinguish formal-rational thought among Hungarian legal scholars and practitioners. At the beginning, "bourgois" judges were replaced by "popular" judges, and loyal communists placed in important academic positions. By the mid-seventies, however, legal academia had reestablished professionalism to a great degree. After the trauma of the 1956 uprising, the Communists under Janos Kdr concluded some kind of "social contract" with the Hungarian society: as long as the power of the Communist party and the hegemony of the Soviet Union was not challenged, the party left considerable freedom for academic research (see e.g. Saj, 1994). There was active and largely uncensored 24

research on international law, comparative law and sociology of law, and on many occasions, Hungarian scholars were free to travel to conferences in the West, and even to conduct extended research. Even if these privileges were often used to coopt scholars and intellectuals, they left a lasting impression on many who would later become members of the opposition. Not coincidentally, almost half of the members of the Hungarian Constitutional Court were former fellows of the German Humboldt foundation. At the same time, the relations of authority inside the regime underwent a rationalization process. State institutions regained autonomy over the party (cf. Tks, 1996), the economy became more differentiated and required a rational legal framework (Seleny, 1991; Seleny, 1995) and order was increasingly seen as resting on legality. Strong currents within the regime demanded the subjection of party rule to a rational-legal process - a fact that prepared the peaceful and orderly transfer of power in 1989/1990 (Zsidai, 1996). In Poland, the movement to force legalism on the Communist regime came largely from without the party - even if, much like in Poland, there had been relatively open research on matters of legal theory and the sociology of law. But it was the impact of the Solidarnosc-movement which led the regime, even after the suppression of Solidarnosc through the declaration of the state of war, to install a Constitutional Tribunal (Brzezinski, 1998:143). Even though it was designed not to interfere with the hegemony of the ruling party, it introduced a new principle into the political system: that power could be controlled by legal rules. Even though it could not resort to valuerational natural law to change the nature of the system itself, it helped to prepare, by the piecemeal introduction of formal legalism, the establishment of the rule of law that was to return after 1989 (Kurczewski, 1999). In Slovakia, finally, which was until 1993 part of the Czechoslovak (first "socialist," then "federal") Republic, things went different. Even though the Czechoslovakia Communist party had inserted provisions for the establishment of a Constitutional Court after the suppression of the "Prague Spring" in 1968, this institution was never established. The hard-line regime did not allow a liberalization of science comparable to Hungary or Poland, and, in the Slovak part of the Republic, legal academics remained isolated and with hardly any contacts to the West. While in Hungary and Poland the demands of economic reform and liberalization (which was strongest in Hungary) had an effect on the formalization of law, this was not the case in Slovakia. In most cases, the bureaucracy kept on working on a patron-client basis. 25

The development of formal legality was not supported in a rapidly modernizing, but still largely rural society (Szomolnyi, 1994; Pithart, 1995). The Rule of Law revolution and the rationalization of revolutionary charisma 1. After the fall of Communism, the reasons of which I cannot discuss here 24, a new type of legal thought appeared in almost all post-Communist countries: the idea of liberal Constitutionalism. While one would have expected, after the long suppression of the "will of the people," the establishment of popular sovereignty in pure form, i.e. as the unconstrained will of the majority, instead almost everywhere Constitutional Courts were established (Brunner, 1993b). This presents a puzzle for Rational Choice theorists, since it could be argued that the parliaments as framers of the new constitutions had little interest in establishing constraints on their own power. The answer that game theory provides is that in most cases, the new constitutions were a bargain between the old and the new elites, and it was rational for each group to install a third player who would protect them while they are in opposition (see, e.g., Bartlett, 1997:264). While this model is convincing in the abstract, it is doubtful if it reflects what really happened. Rather, from accounts about constitution-making it seems that parliamentarians hardly new what Constitutional Courts were about. And then, they could not expect that the court would really help them. This is not to say that strategic considerations played no role. Rather, there were many causes involved. Specifically, the "West-European model" of Constitutionalism - basically the Austrian and German model of constitutional review, had a strong impact on decision-makers. This was partly due, as in the case of Hungary and Poland, to previous experiences of legal counselors of the opposition who had been allowed to travel to the West already during late Communism, and who had a genuine value-rational attachment to ideas about the "Rechtsstaat" and the "Rule of Law." As Vilmos Ss has argued, The fact that during the political transition Hungarian society opted for constitutional democracy was fundamentally the result not of rational considerations, buth rather, and quite naturally, the consequence of a political decision. The importance of extremist and/or populist movements opposing Constitutionalism was minimal. The political elite, together with the majority of Hungarian society, deemed Constitutionalism a worthy example to be followed as the only tool to maintain democratic law and order, and to prevent the recurrence of dictatorship. Therefore it is similarly understandable that, from among the ranks of the political elite, those who had a background in law came to the fore.

24

See for a Weberian analysis Jowitt, 1992a, Chapt. 7, a recent comparative study Bunce, 1999.

26

Members of the legal profession had a theoretical, rather than practical, knowledge of the procedures and tools required for the creation of a democratic state based on the principles of Constitutionalism. Thus, Constitutionalism has become the strongest legitimizing force of political transition. (Ss, 1999:135) For many dissidents who came to power after 1989, the codification of natural law into constitutional law and the protection of this law against violations through a constitutional court, was a reaction against the massive human rights violations by the previous regime (Scheppele, 2000). For many parliamentarians and the politically attentive public, there was a "charismatic" motivation involved: the idea that the return to an "imagined Europe," as Kim Scheppele (Scheppele, 1996) has called it. would solve all the problems of the corrupted everyday life of Communism. The Constutional Court was the only institution untainted by the Communist past. In order to be a "normal European country," Scheppele argues, many politicians in Hungary accepted expansive constitutional review which they thought to be normal in Western Europe. Scheppele argues that they accepted the highly controversial and counter-majoritarian jurisprudence of the Hungarian Constitutional Court because, as they said, part of being European included this form of a "Rechtsstaat." Empirically, of course, they were wrong - many European countries do not have Constitutional Courts designed after the Kelsenian model. But from a Weberian perspective, one sees impersonal charisma at work: the idea that the Court successfully cast itself as a "prophet" of the new Hungary, part of the European nations under the rule of law, aloof from the dirty struggles of politics. The law the Constitutional Court provided was charismatic because it was - from the perspective of the public - "revealed," even though from the perspective of the Constitutional Court, of course, it was deduced from reason and European tradition-- the "invisible constitution," as the court called it (Fzr, 1997). In Poland, one can find similar phenomena. Even though the parliament was entitled, until 1997, to override the Polish Constitutional Tribunal's decision with a 2/3 majority, it happened only strikingly few times (see Brzezinski, 1998). Again, there is more than pure Charisma at work: for example the notion that good behavior according to rule-of-law standards would pay off on the European level, supporting Poland's bid to become member of the European Union.25 But if we compare Hungary

25

This is what the rational-choice inspired "international socialization theory" argues. See Hland, 2001.

27

and Poland with Slovakia, it becomes obvious that one cannot attribute, a priori, such far-sighted instrumental rationality to political actors. Slovakia had a good chance of becoming a first-round candidate for the European Union. However, from 1993-1998, the ruling coalition under the populist prime minister Vladimir Meciar chose to alienate the West-Europeans by semi-authoritarian governing style which included extreme disrespect for the Slovak constitutional court: judges were bullied and decisions ignored (Boulanger, 1999). Slovakia is an interesting case for study: the constitution was written by a Meciar team, who also picked the constitutional court judges. Nobody forced them to include a constitutional court, but probably, it was taken for granted as part of the new democratic regime (plus the fact that the Czech republic, from which Slovakia had just separated, also had a constitutional court). The court (the president of which was a former socialist prime minister), never developed enough Charisma to wield power comparing to the Hungarian and Polish courts. Instead, prime minister Meciar was perceived, by the supporters of his party, as a "hero" saving them from economic hardship and self-confidently representing Slovak identity against what was imagined to be egoist and arrogant Czechs. In Weberian terms the transition period in Hungary and Slovakia could be interpreted as follows. In Hungary, there was a impersonal-charismatic / rational-legal form of legitimate rule, with the government and the constitutional court almost sharing power. In Slovakia, by contrast, a personal-charismatic / neo-traditional form of regime held to power until 1998, when it was voted out of power. It was charismatic as far as Meciar was able to dominate a coalition of mainly self-interested ex-communists turned nationalists and to appeal directly to large parts of the rural population. It was neotraditional as far as the "staff" of the regime was paid off by often illegal forms of privatization and political posts, similar to the practices under the old regime. There is an interesting problem with the application of the concept of personal charisma to Meciar. Shari Cohen, in her excellent book on the rise of the Meciar regime, has questioned whether Meciar can really be called "charismatic." She quite rightly points out that Meciar had no vision, but rather was an opportunist who would take up any issue that promised to keep him in power. She emphasizes that what we see in the postcommunist world are demagogues, not charismatics. Demagogues merely reflect the society to which they appeal, populist style. Charismatics, on the other hand, offer transfomative ideologies.(Cohen, 1999: 194)

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I would argue, however, that there was a sense in which Meciar, who undoubtably has personal charisma, also had a "mission," whether or not he truly believed in it himself or just picked it because of expediency. His appeal to "Slovak self-assertion" did ring with a large part of the population which fostered anti-Czech and anti-Hungarian feelings. For all its inconsistencies and lack of vision, Meciar's message can be characterized as a salvation narrative with a binary opposition of good and evil, a condition Philip Smith has argued to facilitate the rise of charismatic personalities (Smith, 2000). Along the lines of what I have argued earlier, the internal weakness of Meciar's might have contributed to his downfall in the elections 1998. Poland could be seen to occupy a middle position between the two other cases: On one side, there was a charismatic personality, president Walesa. On the other, there was first a Constitutional Tribunal which, on almost no textual basis other than the "Rechtsstaats"-Principle in the constitution, developed a powerful constitutional jurisprudence which turned several times against the president, and invalidated, mostly successfully, many laws passed by parliament. The court was assisted by the institution of the Ombudsman which also became very popular as a defender of rights. (Brzezinski, 1998; Kurczewski, 1993). Walesa's anti-formal, personalistic and often whimsical style of governing was not well received by the Polish public, who, in 1995, voted him out of office in favor of a non-charismatic former Communist, who, in contrast, fully complied with rational-legal forms of governing.

IV. Conclusion
I stop my look at the post-1989 development of Constitutionalism here. To make full use of the Weberian paradigm, one would also have to analyze the elements of formal and substantive reasoning in the decisions of the Constitutional Courts in the three countries under study. One could also try to develop a theory of judicial authority in post-authoritarian societies. Such a theory, from a Weberian standpoint, would have to take historical, social and cultural factors into account, and would be skeptical about the explanatory power of abstract mathematical models (see for example Vanberg, 2000). In my paper, I have pointed to non-material factors like value-rationality and charisma. Going beyond and supplementing Weber, such a theory also needs to take into account the role of public discourse and public perceptions, and the role of the international context in shaping a particular country's processes of constitutionalization (Heydebrand, 1997). 29

As Max Weber has emphasized himself many times, monocausal explanation in idealistic terms are as deficient as purely materialistic ones. Interest, institutions, and socio-economic conditions are important parts of the story of legal transformation anywhere. But as a conclusion, I want to make two points: first, legal transformation is a story, i.e. a path dependent process with many coincidences and unintended consequences, with lots of imagining involved. Secondly, this should not keep us from theorizing, but should encourage us to develop many social theories of law "on the ground"; to see law as a part of culture, of the economy, and of politics, like Weber has done many years ago. Maybe, as the "new institutionalism" florishes in socio-leal studies, Weber will experience a renaissance.

References
Bartlett, David L., 1997: The Political Economy of Dual Transformation. Market Reform and Democratization in Hungary. Ann Arbor: University of Michigan Press. Berger, Peter L. & Thomas Luckmann, 1966: The Social Construction of Reality. A Treatise in the Sociology of Knowledge. London: Allen Lane. Boulanger, Christian, 1999: "Constitutionalism in East Central Europe? The Case of Slovakia under Meciar," East European Quarterly, vol. 33, no. 1, pp. 21-50. Breuer, Stefan, 1991: Max Webers Herrschaftssoziologie. Frankfurt a.M.: Campus. Breuer, Stefan, 1994: Brokratie und Charisma. Zur politischen Soziologie Max Webers. Darmstadt: Wissenschaftliche Buchgesellschaft. Breuer, Stefan, 1998: "The Concept of Democracy in Weber's Political Sociology," in: Ralph Schroeder (ed.), Max Weber, democracy and modernization. New York: St. Martin's Press, pp. 1-15. Brunner, Georg, 1993a: "Die Entstehung des demokratischen Verfassungsstaats in Ungarn," in: Holm Sundhaussen (ed.), Sdosteuropa zu Beginn der Neunziger Jahre. Wiesbaden: Harrassowitz, pp. 87-107. Brunner, Georg, 1993b: "Development of a Constitutional Judiciary in Eastern Europe," Review of Central and East European Law, p. 819. Brzezinski, Mark, 1998: The Struggle for Constitutionalism in Poland. Houndsmills,Basingstoke: Macmillan Press. Bunce, Valerie, 1999: Subversive Institutions. The Design and the Destruction of Socialism and the State. Cambridge,UK: Cambridge University Press. Burawoy, Michael, 2000: "A Sociology for the Second Great Transformation?," Annual Review of Sociology, vol. 26, pp. 693-695. Clayton, Cornell W. & David A. May, 1999: "A Political Regimes Approach to the Analysis of Legal Decisions," Polity, vol. 32, no. 2, pp. 233-252. Clayton, Cornell W. & Howard Gillman (eds.), 1999: Supreme-Court Decision-Making: New Institutionalist Approaches. Chicago: Chicago University Press. Clayton, Cornell W., 1999: "The Supreme Court and Political Jurisprudence: New and Old Institutionalisms," in: Cornell W. Clayton & Howard Gillman (eds.), Supreme-Court Decision-Making: New Institutionalist Approaches. Chicago: Chicago University Press, pp. 15-41.

30

Cohen, Jere, 1975: "De-Parsonizing Weber: A Critique of Parsons' Interpretation of Weber's Sociology," American Sociological Review, vol. 40, pp. 229-241. Cohen, Shari J., 1999: Politics without a past : the absence of history in postcommunist nationalism. Duke: Duke University Press. Collins, Randall, 1998: "Democratization in World-Historical Perspective," in: Ralph Schroeder (ed.), Max Weber, democracy and modernization. New York: St. Martin's Press, pp. 14-31. Dahl, Robert, 1956: A Preface to Democratic Theory. Chicago: University of Chicago Press. Di Palma, Giuseppe, 1990: To Craft Democracies. An Essay on Democratic Transitions. Berkeley: University of California Press. Diamond, Larry & Marc F. Plattner (eds.), 1996 (2nd ed.): The Global Resurgence of Democracy. Baltimore: John Hopkins University Press. Downing, John D. H., 1996: Internationalizing Media Theory. Transition, Power, Culture. Reflections on Media in Russia, Poland and Hungary 1980-95. London: Sage. Edelmann,L., et al. 1995: "The "New Institutionalism" in Law and Legal Theory," Studies in Law, Politics, and Society, vol. 15. Epstein, Lee & Jack Knight, 1997: "The New Institutionalism, Part II. (with a rejoinder by Howard Gillman)," Law and Courts, no. Spring 1997, pp. 4-13. Epstein, Lee & Jack Knight, 1998: The Choices Justices Make. Washington, DC: Congressional Quarterly. Epstein, Lee, Jack Knight & Olga Shvetsova, 2000: "The Role of Constitutional Courts in Establishment and Maintenance of Democratic Systems of Governments. Paper prepared for delivery at the 2000 Annual Meeting of the American Political Science Association, Washington, D. C., August 31-September 3, 2000. Feldman, Stephen M., 1991: "An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law," Law and Social Inquiry, vol. 16, no. 2, pp. 205-248. Ferejohn, John A. & Barry Weingast, 1992: "A Positive Theory of Statutory Interpretation," International Review of Law and Economics, vol. 12, pp. 263-279. Frank, Jerome, 1930: Law and the Modern Mind . New York: Brentano's Publishers. Fzr, Katalin, 1997: "The Invisible Constitution: The Construction of Constitutional Reality in Hungary," International Journal of Sociology, vol. 26, no. 4, pp. 48-65. Gibson, James L. & Gregory A. Caldeira, 1996: "The Legal Cultures of Europe," Law & Society Review, vol. 30, no. 1, pp. 55-86. Gillman, Howard & Cornell W. Clayton (eds.), 1999: The Supreme Court in American Politics. New Institutionalist Interpretations. Gillman, Howard, 1997: "The New Institutionalism, Part I: More and Less than Strategy: Some Advantages to Interpretive Institutionalism in the Analysis of Judicial Politics," Law and Courts, pp. 6-11. Gillman, Howard, 1999: "Reconnecting the Modern Supreme Court to the Historical Evolution of American Capitalism," in: Howard Gillman & Cornell W. Clayton (eds.), The Supreme Court in American Politics. New Institutionalist Interpretations., pp. 235-257. Gordon, Scott, 1991: The history and philosophy of social science. London: Routledge. Greif, Avner, 1994: "Cultural Beliefs and the Organization of Society: A Historical and Theoretical Reflection on Collectivist and Individualist Societies," Journal of Political Economy, vol. 102, no. 5, pp. 912-950. Habermas, Jrgen, 1994: "ber den internen Zusammenhang von Rechtsstaat und Demokratie," in: Ulrich K. Preu (ed.), Zum Begriff der Verfassung. Frankfurt a.M.: Fischer, pp. 83-94. Habermas, Jrgen, 1998: Faktizitt und Geltung. Beitrge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Frankfurt a.M.: Suhrkamp.

31

Habermas, Jrgen, 1999 (3. Aufl.[orig. 1981]): Theorie des kommunikativen Handelns. Band 1: Handlungsrationationalitt und gesellschaftliche Rationalisierung. Frankfurt a.M.: Suhrkamp. Hanson, Stephen E., 1997: Time And Revolution. Marxism and the Design of Soviet Institutions. Chapel Hill: University of North Carolina Press. Heydebrand, Wolf, 1995: "The Dynamics of Legal Change in Eastern Europe," Studies in Law, Politics, and Society, vol. 15, no. 1, pp. 263-313. Heydebrand, Wolf, 1997: "Globalization and Rule of Law at the End of the 20th Century," European Yearbook in the Sociology of Law. Hland, Armin, 1993: "volution du droit en Europe central et oriental: assiste-t-on une renaissance du "Law and Development"?," Droit et Socit, vol. 25, pp. 467-488. Hland, Armin, 2001: "EU - Recht auf dem Weg nach Osten," WeltTrends, no. 31 (forthcoming). Huskey, Eugene, 1992: "From Legal Nihilism to Pravovoe Gosudarstvo. Soviet Legal Development, 1917-1990," in: Donald D. Barry (ed.), Toward the "rule of law" in Russia? Political and legal reform in the transition period. Armonk, N.Y.: M.E. Sharpe, pp. 23-41. Hutchinson, Allan C., 2000: It's all in the Game: A Nonfoundationalist Account of Adjudication. Durham, NC: Duke University Press. Ishiyama Smithey, Shannon & John T. Ishiyama, 2000: "Judicious Choices: Designing Courts in PostCommunist Politics," Communist and Post-Communist Studies, vol. 33, no. 1, pp. 163-182. Jowitt, Ken, 1992a: New World Disorder. Berkely: University of California Press. Jowitt, Ken, 1992b: "The Leninist Phenomenon," in: Ken Jowitt (ed.), New World Disorder. Berkeley: University of California Press, pp. 1-50. Kocka, Jrgen, 1986: Sozialgeschichte. Begriff - Entwicklung - Probleme. Gttingen: Vandenhoeck und Ruprecht. Koelble, Thomas A., 1995: "The New Institutionalism in Political Science and Sociology," Comparative Politics, pp. 231-243. Krawietz, Werner, 1988: "Der soziologische Begriff des Rechts," Rechtshistorisches Journal, vol. 7, pp. 157-177. Kuhn, Thomas S., 1970: The Structure of Scientific Revolutions. Chicago: University of Chicago Press. Kurczewski, Jacek, 1993: The Resurrection of Rights in Poland. Oxford: Clarendon. Kurczewski, Jacek, 1999: "The Rule of Law in Poland," in: Jiri Priban & James Young (eds.), The rule of law in Central Europe: the reconstruction od legality, constitutionalism and civil society in the post-communist countries. Aldershot: Ashgate, pp. 181-203. Linz, Juan J. & Alfred Stepan, 1996: Problems of Democratic Transition and Consolidation. Southern Europe, South America, and Post-Communist Europe. Baltimore: John Hopkins University Press. Luhmann, Niklas, 1969: Legitimation durch Verfahren. Neuwied/Berlin. Luhmann, Niklas, 1995: Das Recht der Gesellschaft. Frankfurt a.M.: Suhrkamp. Markovits, Inga, 1982: "Law and Order - Constitutionalism and Legality in Eastern Europe," Stanford Law Review, vol. 34, pp. 513-613. Murphy, Walter F. & Joseph Tanenhaus, 1972: The Study of Public Law. New York: Random House. Pithart, Petr, 1995: "Towards a Shared Freedom, 1968-89," in: Jiri Musil (ed.), The End of Czechoslovakia. Budapest: Central European University Press, pp. 201-224. Podgrecki, Adam & Vittorio Olgiati (eds.), 1996: Totalitarian and post-totalitarian law. Aldershot: Dartmouth. Przeworski, Adam, 1991: Democracy and the Market. Cambridge, UK: Cambridge University Press.

32

Quensel, Bernhard K., 1997: "Logik und Methode in der "Rechtssoziologie " Max Webers. Ein Beitrag zur Klrung der grundlegenden Begriffe und Perspektiven," Zeitschrift fr Rechtssoziologie, vol. 18, no. 2, pp. 133-159. Rostain, Tanin, 2001: "Educating Homo Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement," Law and Society Review, vol. 34, no. 4, pp. 973-1006. Roth, Gnther, 1987: Politische Herrschaft und persnliche Freiheit. Heidelberger Max-WeberVorlesungen 1987. Frankfurt a.M.. Saj, Andrs, 1994: "Law and Legal Scholarship in the Happiest Barrack and Among the Hungry Liberated: Personal Recollections," Poznan Studies in the Philosophy of the Sciences and the Humanities, vol. 36, pp. 219-233. Schatz, Sara, 1998: "A Neo-Weberian Approach to Constitutional Courts in the Transition from Authoritarian Rule: The Mexican Case (1994-1997)," International Journal of the Sociology of Law, vol. 26, no. 2, pp. 217-244. Scheppele, Kim L., 1996: "Imagined Europe," Plenary Address. Law and Society Association Meeting (Glasgow, Scotland). Scheppele, Kim L., 2000: "Constitutional Interpretation after Regimes of Horror," paper presented at Law and Society Association Annual Meeting, (Miami, Florida). Schluchter, Wolfgang, 1998: Die Entwicklung des modernen Rationalismus. Eine Analyse von Max Webers Entwicklungsgeschichte des Okzidents. Frankfurt a.M.: Suhrkamp. Schroeder, Ralph (ed.), 1998: Max Weber, democracy and modernization. New York: St. Martin's Press. Schroeder, Ralph, 1992: Max Weber and the sociology of culture. London: Sage. Segal, Jeffrey A. & Harold J. Spaeth, 1993: The Supreme Court and the attitudinal model. Cambridge: Cambridge University Press. Segal, Jeffrey A., 1999: "Supreme Court Deference to Congress: An examination of the Marksist Model," in: Cornell W. Clayton & Howard Gillman (eds.), Supreme-Court Decision-Making: New Institutionalist Approaches. Chicago: Chicago University Press, pp. 237-253. Seleny, Anna, 1991: "Hidden Enterprise and Property Rights Reform in Socialist Hungary," Law and Policy, vol. 13, no. 2, pp. 149-183. Seleny, Anna, 1995: "Property Rights and Political Power: The Cumulative Process of Political Change in Hungary," in: Andrew G. Walder (ed.), The waning of the communist state: economic origins of political decline in China and Hungary. Berkeley: University of California Press, pp. 27-60. Skocpol, Theda (ed.), 1984: Vision and Method in Historical Sociology. Cambridge, UK: Cambridge University Press. Smith, David N., 1998: "Faith, Reason, and Charisma: Rudolf Sohm, Max Weber, and the Theology of Grace," Sociological Inquiry, vol. 68, no. 1, pp. 32-60. Smith, Philip, 2000: "Culture and Charisma: Outline of a Theory," Acta Sociologica, vol. 43, no. 1, pp. 101-111. Smith, Rogers M., 1988: "Political Jurisprudence, the "New Institutionalism," and the Future of Public Law," American Political Science Review, vol. 82, no. 1, pp. 89-108. Somit, Albert & Joseph Tanenhaus, 1982: The development of American political science. From Burgess to behavioralism. New York: Irvington Publishers. Ss, Vilmos, 1999: "The Paradigm of Constitutionalism," in: Martin Krygier & Adam Czarnota (eds.), The Rule of Law after Communism: Problems and Prospects in East-Central Europe. Aldershot: Ashgate/Dartmouth, pp. 131-148. Spaeth, Harold J. & Jeffrey A. Segal, 1999: Majority rule or minority will. Adherence to precedent on the U.S. Supreme Court . Cambridge: Cambridge University Press. Sterbling, Anton & Heinz Zipprian (eds.), 1997: Max Weber und Osteuropa. Hamburg: Krmer.

33

Stone Sweet, Alec, 2000: Governing With Judges. Constitutional Politics in Europe. Oxford: Oxford University Press. Sutter, Daniel, 1998: "Calculation of Self-Interest and Constitutional Consensus: The Role of Ideology," Constitutional Political Economy, vol. 9, pp. 323-333. Szomolnyi, Soa, 1994: "Old Elites in the New Slovak State and Their Current Transformation," in: Soa Szomolnyi & Grigorij Meseznikov (eds.), The Slovak Path of Transition - To Democracy? Bratislava: Slovak Political Science Association, pp. 63-82. Teubner, Gnther, 1989: "How the Law Thinks: Toward a Constructivist Epistemology of Law," Law & Society Review, vol. 23, no. 5, pp. 727-757. Thelen, Kathleen & Sven Steinmo, 1992: "Historical Institutionalism in Comparative Politics," in: Sven Steinmo, Kathleen Thelen & Frank Longstreth (eds.), Structuring Politics: Historical Institutionalism in Comparative Analysis. Cambrigde, UK: Cambrigde University Press, pp. 132. Tks, Rudolf L., 1996: Hungary's negotiated revolution. Economic reform, social change, and political succession, 1957-1990. Cambridge: Cambridge University Press. Vanberg, Georg, 2000: "Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review. Paper prepared for delivery at the 2000 Annual Meeting of the American Political Science Association, Washington, D. C., August 31-September 3, 2000. von Beyme, Klaus, 1994 (2. Aufl.): Systemwechsel in Osteuropa. Frankfurt a.M.: Suhrkamp. von Beyme, Klaus, 1996 (3. Aufl.): Theorie der Politik im 20. Jahrhundert. Von der Moderne zur Postmoderne. Frankfurt a.M.: Suhrkamp. Weber, Max, 1976 ([orig. 1912]): The Protestant Ethic and the Spirit of Capitalism. New York: Scribner. Weber, Max, 1978: Economy and Society. ed. by Guenther Roth and Claus Wittich. Vol. 2 vols. Berkely: University of California Press. Weber, Max, 1980 (5., rev. Aufl.[orig. 1921]): Wirtschaft und Gesellschaft. Grundri der verstehenden Soziologie. Tbingen: Mohr. Weber, Max, 1988a (9. Aufl.[orig. 1920]): Gesammelte Aufstze zur Religionssoziologie. Tbingen: J. C. B. Mohr. Weber, Max, 1988b (7. Aufl.[orig. 1922]): Gesammelte Aufstze zur Wissenschaftslehre. herausgegeben von Johannes Winckelmann. Tbingen: J.C.B. Mohr (Paul Siebeck). Weingast, Barry R., 1997: "The Political Foundations of Democracy and the Rule of Law," American Political Science Review, vol. 91, no. 2, pp. 245-263. Zsidai, gnes, 1996: "Legitimitt kraft Legalitt. Funktionswandel des Rechts in Ungarn," Zeitschrift fr Rechtssoziologie, vol. 17, no. 2, pp. 249-258.

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