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Central and Eastern European Socio-Political and Legal Transition Revisited

by Fruzsina Gárdos-Orosz (Volume editor) Balázs Fekete (Volume editor)
Edited Collection 248 Pages

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the editors
  • About the book
  • This eBook can be cited
  • Contents
  • Preface (Ivan Szelényi)
  • Introduction (Balázs Fekete-Fruzsina / Gárdos-Orosz)
  • Constitutional Law as a mirror of transition to liberal democracy and its backsliding in Eastern Europe (Marie-Elisabeth Baudoin)
  • ‘The Opposite is True … as Well.’ Inconsistent Values and Attitudes in Hungarian Legal Culture: Empirical Evidence from and Speculation over Hungarian Survey Data (György Gajduschek)
  • Transition to Democracy and Determinacy of Legal Concepts. A Brandomian Semantics View (Maciej Dybowski)
  • The Rebirth of Customary Law in a Time of Transition. The Case of Albania (Jan Bazyli Klakla)
  • Transitioning Boundaries Between Law and Social Practice: Corruption in Hungary Before and After 1989 (Petra Burai)
  • Law, Politics and the Economy in Poland’s Post-Socialist Transformation: Preliminary Notes Towards an Investigation (Rafał Mańko)
  • Between Path Dependence and Political Elite Capture: The Second Chambers in Central and Eastern European Unitary States Explained (Dario Čepo)
  • Explaining the Trajectories of Post-Communist Democratization. The Case of Albania (Ketrina Çabiri Mijo / Adela Danaj)
  • The Hollowing Out of Institutions: Law- and Policymaking in Contemporary Serbia (Danilo Vuković)
  • Collective Memory and Historical Determinacy: The Shaping of the Polish Transition (Mirosław M. Sadowski)
  • Justice (Lost) in Transition: Assessing the ICTY Legacy (Axelle Reiter)
  • The Opening of the Constitutional Order of Democracy in Transition towards Supranational Constitutionalism: the Bulgarian case (Martin Belov)
  • The V4 Cooperation and the European schism over the migration crisis: The history of political thought in the service of political analysis (Ferenc Hörcher)

Balázs Fekete/Fruzsina Gárdos-Orosz (eds.)

Central and Eastern European Socio-
Political and Legal Transition Revisited

About the editors

Balázs Fekete is a research fellow of the Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies, and senior lecturer in law at the Eötvös Loránd University, Faculty of Law.

Fruzsina Gárdos-Orosz is a senior research fellow of the Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies, and associate professor in constitutional law at the National University of Public Service, Faculty of Political Science and Public Administration.

About the book

This Yearbook of the Central and Eastern European Forum of Young Legal, Political and Social Theorists is devoted to the analysis of the consequences of the Central and Eastern European transition. The volume focuses on understanding the constantly evolving process of democratization. Following the collapse of the Soviet Union democratic transitions took place all over this region and the new democracies had different shapes. All states, however, wished to become a western-type democracy. The authors evaluate the ongoing struggle in the region to understand and to make others understand the peculiarities of these seemingly western-type, but somewhat different democratic regimes.

This eBook can be cited

This edition of the eBook can be cited. To enable this we have marked the start and end of a page. In cases where a word straddles a page break, the marker is placed inside the word at exactly the same position as in the physical book. This means that occasionally a word might be bifurcated by this marker.

Contents

Ivan Szelényi

Preface

Balázs Fekete-Fruzsina Gárdos-Orosz

Introduction

Marie-Elisabeth Baudoin

Constitutional Law as a mirror of transition to liberal democracy and its backsliding in Eastern Europe

György Gajduschek

‘The Opposite is True … as Well.’ Inconsistent Values and Attitudes in Hungarian Legal Culture: Empirical Evidence from and Speculation over Hungarian Survey Data

Maciej Dybowski

Transition to Democracy and Determinacy of Legal Concepts. A Brandomian Semantics View

Jan Bazyli Klakla

The Rebirth of Customary Law in a Time of Transition. The Case of Albania

Petra Burai

Transitioning Boundaries Between Law and Social Practice: Corruption in Hungary Before and After 1989

Rafał Mańko

Law, Politics and the Economy in Poland’s Post-Socialist Transformation: Preliminary Notes Towards an Investigation

Dario Čepo

Between Path Dependence and Political Elite Capture: The Second Chambers in Central and Eastern European Unitary States Explained

Ketrina Çabiri Mijo and Adela Danaj

Explaining the Trajectories of Post-Communist Democratization. The Case of Albania←5 | 6→

Danilo Vuković

The Hollowing Out of Institutions: Law- and Policymaking in Contemporary Serbia

Mirosław M. Sadowski

Collective Memory and Historical Determinacy: The Shaping of the Polish Transition

Axelle Reiter

Justice (Lost) in Transition: Assessing the ICTY Legacy

Martin Belov

The Opening of the Constitutional Order of Democracy in Transition towards Supranational Constitutionalism: the Bulgarian case

Ferenc Hörcher

The V4 Cooperation and the European schism over the migration crisis: The history of political thought in the service of political analysis←6 | 7→

Ivan Szelényi

Preface

25 Years After the Transition – is the title of the 8th CEE Forum. This is a great topic: such an anniversary is a great opportunity to confront the illusions we harboured 25 years ago and celebrate the achievements of societies which drifted away from communism in the direction promised to be liberal capitalist democracy. The 13 papers presented in this volume offer cool-headed analysis. Most of the papers belong to legal scholarship, while some of them touch upon social, economic, cultural and political processes. I identify myself as a sociologist – with some stretch I may call myself as a political scientist – but I certainly am no scholar of law. Therefore, I am not really competent to act as a commentator on this work. Nevertheless, the legal issues discussed at this conference not only have far reaching implications for the social, political and economic processes the post-communist world is struggling with, but they are questions I have been confronted with in my work on the nature of ‘varieties of post-communist capitalisms’. I believe I am competent enough to raise some central questions about issues like the rule of law, constitutionalism, the separation of powers, the present and future of liberalism, the struggle to establish private property rights, the nature of legitimacy under post-communism.1

Constitutionalism, constitution making

Let me begin with one of the most urgent and difficult tasks during the transition ex-communist countries had to deal with: the pressing problem of establishing the rule of law and the making of liberal (bourgeois) constitutions.

Communist states were not cases of ‘rule of law’ in the conventional sense. Nevertheless, they felt a need to create constitutions, following the Stalinist Constitution of the USSR. There was commitment to law actually, but that was supposed to be ‘substantive’ rather than ‘formal’. Inspired by Lukács’s theory of ‘reified bourgeois consciousness’ (1923) Pashukanis (1929) criticized formal law as being ‘bourgeois law’ (interestingly this criticism of formal law re-emerged in←7 | 8→ the West during the 1970s and ‘80s in ‘critical legal studies’; so whether the law is ‘substantive’ or ‘formal’ is not a trivial question).

During the transition the major task was to transit from a constitution based on substantive legal thinking to formal law. Could it be achieved by readjusting the existing constitution or was there a substantial reason to create a new constitution? In the 1990s, in Hungary, the Constitutional Court conceptualized an ‘invisible constitution’. This idea worked well, but the court was occasionally accused of ‘creating’ rather than ‘administering’ the constitution. What is the appropriate mechanism to pass a constitution? Shall the source of the constitution be the democratically elected legislative branch of the government (shall it be by simple or qualified majority?), or shall it be the ‘will of the people’, hence approved by referenda? Who are the people and in what way can their will be implemented? The US constitution set the standard for over two centuries by clearly identifying the sovereign: ‘We the people’.

The Hungarian ‘Basic Law’ passed in 2011 is more qualified, it states ‘We the members of the Hungarian nation’, by using an ethno-cultural definition of the sovereign (and consciously not identifying it as, ‘we the citizens of the Hungarian Republic’). Furthermore this basic law was approved by the two-thirds majority of the parliament, hence by the elected representatives of the citizens (at that time residents in Hungary), which, given the moderate participation rate at elections and the electoral law rewarding the winners of elections, did not mean the approval of the basic law by the majority of Hungarian citizenry.

Separation of powers

Post-communist countries were committed to the principle of the separation of powers. In classical political theory (Montesquieu) the executive branch is the monarch and the legislative branch is ‘properly constituted’ and, of course, the judiciary is independent from both.

Summary

This Yearbook of the Central and Eastern European Forum of Young Legal, Political and Social Theorists is devoted to the analysis of the consequences of the Central and Eastern European transition. The volume focuses on understanding the constantly evolving process of democratization. Following the collapse of the Soviet Union democratic transitions took place all over this region and the new democracies had different shapes. All states, however, wished to become a western-type democracy. The authors evaluate the ongoing struggle in the region to understand and to make others understand the peculiarities of these seemingly western-type, but somewhat different democratic regimes.

Biographical notes

Fruzsina Gárdos-Orosz (Volume editor) Balázs Fekete (Volume editor)

Balázs Fekete is a research fellow of the Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies, and senior lecturer in law at the Eötvös Loránd University, Faculty of Law. Fruzsina Gárdos-Orosz is a senior research fellow of the Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies, and associate professor in constitutional law at the National University of Public Service, Faculty of Political Science and Public Administration.

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Title: Central and Eastern European Socio-Political and Legal Transition Revisited