From Old Times to New Europe: The Polish Struggle for Democracy and Constitutionalism

In Section 4, I will address the interesting and important question of whether a stronger judiciary, a more independent civil service and more efficient anti-corruption agencies will be able to change the authoritarian nature of the new Hungarian constitutional order or help to prevent a further slide towards state capture in Slovenia.

Another flaw of the simplistic theory of transition lies in its over-simplification of how constitutionalism actually works in Western democracies. Under the strong influence of the Washington consensus, a court-centered, rights-based, and depoliticized account of constitutional democracy prevailed during the early stages of the transition. However, as Sheri Berman has argued, the history of democracy in the West shows a different pattern: Indeed, the political backstory of most democracies is one of struggle, conflict and even violence.

In other words, the history of democracy in the West clearly reveals the import ance of continuous civic and political struggle for successful democratization. In Western Europe and North America, the historical process of building accountable government and creating a politically neutral and professional service was generally lengthy and time-consuming. Depending on the historical context, various actors, from Swedish aristocrats to British financiers and American intellectuals, put forward assertive demands for professional and accountable government. These demands led to changes in both formal and informal institutions.

She further argues that the development of good governance institutions was a struggle fought and won primarily by the political opposition, civil society or even enlightened despots. The almost exclusive focus of the new constitutionalism on courts and rights-based democracy is part of a larger worldwide trend towards the judicialization of politics. Aggressive judicial activism inevitably raises issues of counter-majoritarian difficulty and the democratic accountability of independent institutions like courts.

My concern here, however, is not with the anti-majoritarian dilemma and its obsession with the gouvernement des juges. I argue that the very different political context in Central and Eastern Europe requires a different approach to the role of courts in society. The region has a weak, or sometimes non-existent, tradition of protection of human rights, particularly the rights of minorities.

Almost the entire region has a strong history of ethnic nationalism aimed at the suppression, rather than accommodation, of ethnic minorities, such as Roma, homosexuals, or Jews. Central and Eastern Europe needs liberal democracy to tame these horrible and violent excesses. Majoritarian rule, therefore, needs the limitations that are imposed in liberal democracy by independent political institutions and constitutionally codified rights and freedoms.

I thus share the view of those who see strong constitutional courts as one of the key democratic players in this region. The problem, therefore, is not that the courts are too strong, but rather that the new constitutionalism has a subversive effect on a more inclusive, republican version of constitutionalism and, paradoxically, a negative effect on the quality of rule-of-law institutions. As numerous examples show, rule-of-law institutions in Central and Eastern Europe were all too often created from above, without the support of various political groups and civil society associations.

That such a depoliticized approach to rule-of-law building can lead only to formal routines with surprisingly limited effect on society is made abundantly clear by the example of anti-corruption campaigns in Central and Eastern Europe. Slovenia and Hungary invested too many resources in the formal transplantation of various transparency and anticorruption codes without paying sufficient attention to incentive structures likely to render such codes workable.

As Mungiu-Pippidi argues, one of the major reasons why so many anti-corruption initiatives fail is that they are non-political in nature, unlike the corruption they are designed to fight, which is largely political. Mungiu-Pippidi also argues that a formalistic approach to anti-corruption campaigns faces severe limitations.

It is not surprising that, due to a lack of political support, the largely symbolic work of anti-corruption agencies is not followed by actual work on anti-corruption. She urges these countries to find a mechanism that would solicit the support of the political opposition and civil society for anti-corruption initiatives. At the same time, such campaigns cannot be successful without the cooperation of the government. The current design in Slovenia, as in many other CEE countries, creates a gap between the government and the anticorruption agency. Recently, pressure from civil society has effectively begun to make a mark on anti-corruption efforts, but more concrete results still seem a ways off.

The Hungarian anti-corruption campaign suffers from similar problems. Without stronger support and participation from Hungarian citizens, such measures are not likely to change the current state of affairs in Hungary. Legal constitutionalism, as practiced in Central and Eastern Europe, thus has a built-in paradox: Today it is commonly acknowledged that the whole process of accession systematically favored executives over parliaments and civil society. And it is a rather fascinating problem. Not only were the repres entations of Western models in these theories inaccurate; they also expose an almost reckless ignorance of the importance of history in understanding the transition.

Of the many theoretical objections to these theories, perhaps the most fundamental is that they confuse description with prescription. There was little theoretical argument or empirical evidence to back up the notion that the particular features of simplistic theories of transition were necessary, let alone sufficient, for development, or to support the ahistorical universalist assumption that all countries could or should follow the same road to riches as Western Europe and the US. One of the most fascinating aspects of these theories is that they have totally disregarded the importance of one crucial historical difference between Western models and CEE reality: As Fukuyama notes, Western Europe was quite exceptional in this respect: Such a tradition was almost completely absent in the CEE countries, with the exception of Poland and the Austro-Hungarian provinces, which enjoyed limited but nonetheless important exposure to the rule of law as it existed in the Polish-Lithuanian Commonwealth and the Habsburg Monarchy.

Not surprisingly, today only very old people in these countries still remember the pre-Communist rule-of-law tradition.

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CEE countries therefore had to create, basically from scratch, new legal rules and institutions. It is therefore quite astonishing that the rule of law ideology of the time the Washington Consensus often paid no attention to such structural differences between Western democracies and CEE countries and opted for a largely ahistorical approach to building constitutional democracy.

As clearly stated in Section 1 above, the arguments presented in this article reject such a view and favor simultaneous processes of democratization and the development of the rule of law. In this context, the notion of a more historically oriented approach to institution building has a completely different meaning. Paradoxically, the more we search for the historical origins of legal institutions, the more we come to realize the path-dependent and context specific nature of these institutions: What might be good for one country in a certain period is not necessarily good for another country facing different circumstances.

This insight was completely neglected during the transition process; if nothing else, it could have helped CEE elites avoid the mistakes of their early nineteenth-century predecessors, who, like them, attempted to emulate Western institutions and ended up with shell institutions that had little impact on their respective societies. Fukuyama notes that this historical excursus into the origins of the rule of law has important implications for the promotion of rule of law:.

The Meaning of Populism

In purely technical terms, legal systems are among the most difficult and costly governmental systems to construct because they have huge infrastructure needs and require both human and physical capital. Historical experience with law suggest that more targeted programs may set important precedents that will eventually bear fruit as the society develops the capacity to spread them more broadly.

There may be lower-cost alternatives based on customary or hybrid rules that will work better in the meantime. And it is no surprise that Fukuyama concludes his observation on transitions to the rule of law with a call for humility among rule-of-law promoters:. We should admit to ourselves that we have very little historical experience in successfully constructing a rule of law in societies where this pattern is reversed and where a strong state precedes law.

Organizing free and democratic elections, though a formidable task, is much less demanding than building an independent judiciary or civil service. Rule-of-law institutions are a different story. As I argue in this article, these institutions are often weak or underdeveloped, and thus fail to fulfill their essential function, i. In the next section, I will discuss possible solutions to the current crisis. According to Sadurski, in response to the fact that the conditions for the first-best solutions are missing, 87 exceptionalist constitutionalism argues for the adoption of second-best institutions.

They merely show that a institutions of liberal democracy can assume many forms and b there are a number of different ways to construct these institutions. One of the most flawed views of the Washington consensus was that a single set of most appropriate institutions—the rule of law being one of them—is required for successful development. As noted above, this model confused description with prescription. The real life of institutions such as parliamentary democracy, corporate governance, civil service, or judicial review shows that they can assume many different forms.

With further qualification and specification, it becomes clear that these institutional structures can assume a number of forms. Instead of being told to transplant legal elements from rich industrial economies, the CEE countries should be encouraged to experiment with various forms of institutional configurations in order to find out which are most likely to advance and promote their own development.

Such institutions were in many ways a result rather than the cause of their economic development. Mungiu-Pippidi arrives at nearly the same conclusion: These countries should invest more in economic policies likely to promote economic development and approach institution building more pragmatically than they have in the previous two decades.

New institutions in Central and Eastern Europe could ultimately resemble their Western models. But it is more important that they actually work well for these countries, even if they look different from their Western counterparts. One of the key problems of transitional constitutionalism in Central and Eastern Europe has been relatively weak support for rule-of-law institutions from citizens of the new democracies. For example, the privatization experience in Central and Eastern Europe shows that clearly protected constitutional rights could not perform their function since there were few owners of this new property who could use these rights.

To take another example, anti-corruption strategies are doomed to fail unless they are based on a broad political consensus in all segments of society. One important lesson of the first two decades of the transition is that changes in constitutional rules and political institutions alone are insufficient and more democracy and broader political support for legal and political institutions are also needed.

A crucial task currently facing CEE democracies is therefore the formulation of policies and strategies that could help sustain the more thorough democratization of these societies. Citizens in Central and Eastern Europe have a low degree of trust in politics in general and in political parties in particular, and these countries need to invest more time and energy in reversing this trend.

As the Slovenian and Hungarian cases reveal, establishing new, non-corrupt parties that can promote non-corrupt candidates seems to be a promising strategy. At present, voters in these two countries can choose among more-or-less corrupt party candidates. Only new democratic parties would offer a realistic chance of political change in the direction of greater democracy. In modern liberal democracies, it is the political parties that connect governance to the people.

It is therefore essential to reestablish political trust in political parties and politicians. Needless to say, these new parties could hope to elicit broader support only by offering new candidates, untainted by and independent of existing ruling elites. This democratization of political life would provide a departure from the existing practice of elite-driven democracy building processes. Such a change would also create many new possibilities for democratic constitution making, which was largely sidelined in the past two decades of the transition.

But it is not only political parties that require democratization and new personnel. Modern liberal democracies are heavily dependent upon capable and professional public sectors for both the creation and implementation of public policies. The anti-statist bias of the early stages of the transition almost totally neglected the importance of efficient public sectors for the sound functioning of democracy.

As numerous examples from Slovenia and Hungary show, the credibility and quality of judges, civil servants and other employees of various state agencies is crucial for the proper design of liberal democracy.

Estonia presents an interesting case. It practically replaced all judges who had served under Communism. As Mungiu-Pippidi reports, by , the judicial body had undergone a percent renewal. The fast and deep democratization produced by these purges was essential for the subsequent successful development of an independent judiciary in Estonia.

However, a word of caution is in order: More than twenty years after the fall of Communism, such radical purges might not enjoy a broad political support. Alternative strategies should therefore be used, including pre-tenure trial periods for judges. Slovenia, for example, made a big mistake when it almost unconditionally granted tenure to all judges serving in In retrospect, unconditional tenure weakened, not strengthened, the independence of the judiciary in Slovenia.

Since many CEE countries are small economies, they might not have an unlimited reservoir of new cadres at their disposal.

From Old Times to New Europe by Agata Fijalkowski on Apple Books

The example of the Baltic public sector reform shows that investing in the adequate education and training of civil servants turned out be a very good policy. As a result, these countries now have the most independent civil service personnel in the region.

• From Old Times to New Europe: The Polish Struggle for Democracy and Constitutionalism.
• Estres. 103 recetas para una vida libre de estres (Spanish Edition).
• Absence of the Normal (Friends From Damascus Book 5);
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• Populism in Poland: In/visible Exclusion?

That the choice of the people who hold power may matter more than the rules governing the work of institutions is made abundantly clear by several examples from Central and Eastern Europe. This is not to say that rules are unimportant; but it is only to emphasize that in the current context they often have only a secondary importance. CEE countries should therefore invest more time in educating and selecting the right candidates for various governmental posts instead of constantly changing the legislation governing their work.

The best way to guarantee independent judges, professional civil servants, and vigorous ombudsmen is by providing the potential holders of these posts with the best possible liberal education and training, and by adopting strict selection criteria that give jobs only to the best candidates. In other words, there is an enormous demand for meritocracy, especially after two decades of a policy of party favoritism that saw jobs go to the members or friends of the political parties in power.

Modernized and credible public sectors would thus represent a key precondition for the effective implementation of the new ideas and policies of newly created political parties. And last but not least, it is citizens who are essential to boosting the process of democratization, as representatives of civil society who support, and are involved in, various political initiatives, groups, and activities, the scope of which extends beyond political parties and parliamentary elections to encompass a number of other bottom-up associations and groups.

As political parties and other public institutions gain greater trust and popularity, it is to be expected that citizens, in various forms of civil society, will reclaim the public political space, thereby providing a new impetus to the democratization process. Ultimately, support for democracy depends on citizens. It is only citizens who can create and sustain democracy in life. Political Science Volume Emergencies and the Limits of Legality. Patterns of American Jurisprudence.

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