The rise of illiberal populist regimes in the Eastern flank of the EU is deeply rooted in the ambivalence of the post-1989 liberal transition project. At the core of the liberal vision for the post-communist era was a belief in the democratic Rechtsstaat and the concomitant loyalty to the politics of liberal constitutionalism. Reimagining the relationship between state and citizen, embodied through law reform at all levels, was a springboard from which the entire post-communist transformation was launched, from the separation of powers to democratic elections to the policy of wide-ranging privatization to the constitutional enshrinement of the principles of the inviolability of human rights and their supremacy over the legal system guaranteed by the state.

Today’s illiberal backlash is most evident in its assault on the salient features of the post-1989 constitutional architecture. Much of the social science literature to date has sought to locate the causes of the illiberal backlash in various aspects of neoliberal transformation’s social costs and to uncover the fatal cleavages within the liberal consensus of the 1990s. Constitutional scholarship is understandably devoted to trying to grasp the flaws or one-sidedness of liberal constitutionalism and the roots and reasons for the emergence of counter-constitutionalism or illiberal constitutionalism. This chapter is a historian’s attempt to look at the post-communist constitutional imagination from the point of view of the rule of law concept and its political context.Footnote ¹ Unlike, for example, the economic policy of shock therapy, the rule of law was an unquestioned and shared principle across the emerging political spectrum. What were the political, cultural and historical drivers of this overall political compromise based on the rule of law? How did it develop over time? Were kernels of its future breakdown palpable from the start?

The project of constitutional democracy and the rule of law concept served as a powerful unifying platform for political compromise in the transition era. Although rule of law was originally an idea primarily associated with liberalism in European history, by the end of the twentieth century, the demand for rule of law by no means required liberal Weltanschauung. Socialists and social democrats, radical democrats, conservatives, and republican-oriented democrats in East Central Europe were all in favour of the rule of law. The legal sphere and legal-political ideas played a vital role in the liberal democratic transformation following communist rule. Today’s challenge to the liberal rule of law calls for a re-evaluation of our understanding of that period and its deeper historical contextualization.

In an effort to provide such a historicizing perspective and to look beneath the surface of the post-communist political compromise through the rule of law, this chapter offers a tentative historical typology of the various rule of law understandings of the period of ‘liberal consensus’. I proceed in three steps. First, I briefly outline the historical roots of the 1989 democratic and constitutional revolutions in East Central Europe (ECE), pointing out their several major sources, namely the import of Western constitutional theory, dissident human rights activism and the mostly neglected yet important authoritarian socialist constitutionalism. Second, I look at the nature of the politics of liberal constitutionalism in the 1990s – almost the only game in town then. However, I emphasize its internal diversity in terms of the variety of political and thus also constitutional imagination depending on the different political ideas and ideologies proliferating at that time. This will set the stage for the third and final step, where I explore the different conceptions of the widely invoked rule of law, namely neoliberal, substantive, positivist and non-liberal. Although this chapter takes a transnational view of the entire ECE region, in Section 14.3, for the sake of concision and clarity, I focus primarily on the Czech context. On this basis, I offer a preliminary historical typology of the various conceptions of the rule of law that we encounter on the broad platform of liberal constitutionalism at the time. Albeit significantly diverging these conceptions coexisted within the ‘liberal consensus’ of the period. Yet this diversity contained within itself the seeds of a future schism.

14.1 Exposition: Towards the Constitutional Revolutions of 1989

The constitutional imagination in the post-communist era was pre-determined by the fact that the democratic revolutions of 1989 in ECE represented an apogee of the struggle for a Rechtsstaat in the previous decades.Footnote ² The legalist character of the 1989 revolutions was a result of the power encounter of socialist legalism with its evolving project of socialist authoritarian Rechtsstaat and its dissident challengers. Liberal constitutionalism that dominated the constitutional imagination and legal practice in the region after 1989 has long been interpreted as the offspring of a dissident struggle for human rights whose godmother was the legal-political experience of post-war Western Europe and its institutional framework. In reality, however, the other unacknowledged parent was socialist constitutionalism, which underwent quite dynamic transformations in the late communist period.

Let us take a brief look at both of these parents. Legalism was a key element of the dissident political strategy for the public renegotiation of rights, particularly human and civil rights. The human rights origins and the legalist character of dissidence are sometimes difficult to distinguish. Yet human rights discourse and dissident legalism are two different things: the first was an ideological and philosophical foundation for dissidence, while the second was primarily a strategy of resistance in the authoritarian regime. The international circumstances, such as a new phase of détente and the new international human rights politics following the Helsinki Accords in 1975, created favourable conditions for the rise of the new democratic opposition in communist countries. However, as I have shown in another study, to work on the ground, the human rights doctrine appropriated by dissidents had to be transformed into a concrete and efficient strategy of legal resistance or legal defence, that is, dissident legalism. The newly internationalized human rights doctrine was an inevitable precondition for the rise and sustainability of dissidence and its international visibility. Yet, without dissident legalism on the ground, the human rights doctrine would hardly have become an efficient mechanism.Footnote ³

The dissident legalistic struggle, however, was not a struggle against lawless totalitarianism, as often portrayed by dissidents themselves as well as Western observers. It was civic activism and a strategy of legal resistance in a state governed largely by an authoritarian and often repressive socialist legality. Dissident legalism became a regular part of the opposition’s tactical repertoire only because the late socialist regimes adhered more emphatically than ever before to law as a crucial instrument of governance.

The role of law in state socialist dictatorships changed significantly between the 1950s and 1980s. The Soviet Stalinist system was characterized by a combination of the prerogative state, whose use of force was quasi-regulated through a system of norms, and the normative state.Footnote ⁴ In such a system, there was a tendency to make abrupt changes in legal rules or their application in the interest of maximizing the power of the state or party over the individual. Yet, the expansion of the normative state and development of state socialist ‘legal culture’ received major impetus under Stalinism.Footnote ⁵ The growth of the normative state during Stalinism and its extensive legislation was not created to invest the authorities with any political legitimacy. The Communist Party of the Soviet Union was strong and, therefore, law was not important as a legitimating factor. However, it was still a crucial tool of governance. An instrumental legality par excellence, the Stalinist legal doctrine formulated by Vyshinsky saw the law as a pure instrument of social management, not as a self-standing social formation.Footnote ⁶

The instrumentality of law characterized communist legal and constitutional doctrine throughout the existence of communist rule in Eastern Europe. However, in practice, the recurrent reformist attempts to give law as a whole a greater degree of autonomy in the functioning of a real socialist society have been extremely important. In East Central Europe, there was a significant change in socialist jurisprudence in the late 1950s and 1960s as a reaction to ‘Stalinist dogmatism’ and its ‘voluntaristic understanding’ of socialist law. In legal thinking, it involved a reinterpretation of the Stalinist concept of socialist legality and further consolidation of the normative state. These changes did not mean that the prerogative state disappeared. Still, in the reformist understanding, law and the concept of socialist legality started to be understood as a major check against the future possible misuse of power, as occurred under Stalinism, and simultaneously as an important source of legitimacy for both the socialist state and the reform communist movement. The reformists understood the law as a general civilizational instrument. As such, socialist societies, once the revolutionary changes had been implemented, should have been governed primarily by law, not by direct political interventions.

The legal reformist trend was reversed again to some extent in the consolidation regimes of the 1970s and during the first half of the 1980s. Unlike the revolutionary Stalinist regimes during the first decade after WWII, the late communist dictatorships did not use political terror and revolutionary zeal as the central tools of their rule. While they certainly did not cease to be repressive, open state violence started to recede from the public eye as early as the late 1950s and 1960s and remained so, in most cases, until 1989.Footnote ⁷ From a doctrinal perspective, the period was characterized by a compromise. The legal systems of the late communist dictatorships kept most of the 1960s ‘liberalization’ institutional forms; however, legal theory and assertion were again there predominantly to serve the political and ideological needs of communist governance and, importantly, the socialist state.

Far from being the proverbial ‘golden age of stagnation’, as the Brezhnev era has been seen for decades, this period witnessed dynamic changes in governance techniques, with law at the forefront.Footnote ⁸ The concept of the state retained its primary definition as an organization of class dominance but was transformed into a theoretically inclusive concept of an ‘all-people’s state’; thus, the dictatorship of the proletariat was no longer emphasized.Footnote ⁹ The technocratic project of ‘developed socialism’ should have been characterized not by the revolutionary charisma of the party but by the ‘scientific management of society’. In such a system, law was to play an enormously important role. The concept of socialist legality was once more interpreted as a means of implementing the political domination of the party. Binding the state administration to the existing legal order and the question of the guarantee of legality – the main concern in the reformist age – became of secondary importance behind the ruling qualities of law and the legal system. Yet, the binding nature of socialist legality did not disappear altogether, for it was a part of the general processes of ‘normalization of rule’ in state socialist societies, which, after all, had already been in existence for decades.Footnote ¹⁰ Hence, importantly, the gap between reality and statutory law effectively diminished. Not only technocratic governance but also political repression and terror, such as that in Poland after the establishment of martial law in 1981, were realized through legal regulation.Footnote ¹¹

The increasing importance of legal regulations for the late communist dictatorship prepared new ground for the dissident challengers of the regime and, along with the new international human rights mechanisms, improved their chances to sustain their activities. It marked the playing field between the repressive regime and the so-called democratic opposition or dissent. Violations of human rights, as well as violations of the constitution and applicable laws by the repressive forces and the state administration, were the subject of the main critical arguments of dissident legalism. There was a little doctrinal controversy between dissidents and the communist regime about the human rights interpretation. The socialist constitutions, after all, contained all the basic civil and political rights and diction on par with the constitutions of liberal regimes. The major issue was the question of their constitutional protection and legal accountability of the state organs and, thereby, indirectly, of the Party organs.

Since the birth of the human rights opposition in ECE in the second half of the 1970s, law and legality, the regime’s rule by law and the dissident-envisioned rule of law were a matter of regime-opposition interaction, communication and semantic struggle. The field of contest marked out by existing positive legal norms, but also expanding through the accepted international human rights conventions, pre-determined the possibilities for the communist authorities that still tried hard to use their political prerogatives in a one-party dominated dictatorship but ultimately became increasingly bound by their normative state.

This tendency was ever more strengthened in the second half of the 1980s, the time of perestroika and glasnost in the Soviet Union and elsewhere, with efforts to introduce an authoritarian socialist Rechtsstaat all across the region.Footnote ¹² The most exemplary case of the gradual ‘constitutionalization’ of the dictatorship was Poland, due to the specific situation during and after Solidarity and the authoritarian turn in December 1981. A relatively strong stream of Polish reform communist lawyers within state and party organizations managed to pass legislative projects establishing several institutions meant to strengthen the Polish normative state and, thus, also, the social support of the population through the image of the rule of law. As early as 1980, the Highest Administrative Court, the first in communist-ruled Eastern Europe, was established. It was followed in 1982 (the year of martial law) by the Tribunal of the State. In 1985, the Constitutional Tribunal came into being and, finally, in 1988, the office of the Ombudsman, the public spokesperson of civic rights and watchdog on the state authorities and their dealings with citizens, was created. The tendency towards a socialist Rechtsstaat in Poland is quite visible and represents an important pre-condition for the negotiated regime change in 1989.Footnote ¹³

The constitutional court system was introduced as a part of the ‘socialist renewal’ strategy by which Jaruzelski’s regime tried to increase its legitimacy. An example of ‘liberalization without democratization’, rule of law was offered to the population as a surrogate for the democratization demanded by Solidarity and a promise for law and order. It is not by chance or through the clumsiness of the Polish communist leadership that some of the major steps in creating the socialist Rechtsstaat, such as the creation of the Tribunal of State and the Constitutional Tribunal, were undertaken during the martial law period.Footnote ¹⁴ It certainly did not create a satisfying system of checks and balances for ensuring that administrative organs adhered to existing law and it left a big enough space for both the party and state apparatus to exercise their prerogative powers. Nevertheless, it contributed considerably to strengthening the legal-constitutional elements of the authoritarian system.Footnote ¹⁵

While Poland serves as the most institutionally elaborate example of this process, rudiments of the socialist Rechtsstaat started to emerge all over the region during the late 1980s. The legislative reforms initiated by the regimes were not intended as methods of democratization but as constitutional reforms to reshuffle the balance of the communist dual state in favour of the normative state and stabilize the power system and the ‘leading role’ of the party.

From a longer-term historical perspective, the 1980s socialist Rechtsstaat is a specific and historically located subset of the notion of an authoritarian Rechsstaat, which had many historical predecessors and institutional forms in Central and Eastern Europe. Democratic deficits, strong authoritarian states as modernizing agents, an emphasis on formal legality and fewer safeguards of civic rights and freedoms traditionally characterized this region. The different genealogies of the law-governed state also produced different interpretations of the central notion of Rechtsstaat, which developed over time.Footnote ¹⁶ In the German or Russian tradition up until 1918, the Rechtsstaat mainly represented the legality of administrative acts and checks on the discretion of government officials. Its main thrust – to save authoritarian law and order – stands in contrast to the evolution of the rule of law in contemporary England and Scotland, which was accompanied by the rise of democratic representation. ‘In this formally rational understanding, Rechtsstaat was about procedures, not about rights’ and served mainly to maintain the authoritarian system of government.Footnote ¹⁷ As opposed to the German development, however, in the Austro-Hungarian Empire, due to its composite nature and the rising political importance of nationalist movements, rights played a more important role in the political struggle and thus also in constitutional design.Footnote ¹⁸

Thus, we need to differentiate between two contrasting Rechtsstaat notions. First, a rights-based democratic Rechtsstaat emphasizing substantive justice, whose most influential form in Europe nowadays is represented by the German Basic Law as a response to the obvious abuse of the democratizing ‘Prussian’ Rechtsstaat by the Nazis. Second, a notion of the authoritarian Rechtsstaat based on procedural rather than substantive justice, which can help us better understand the legal and constitutional changes in authoritarian societies. The project of the authoritarian Rechtsstaat and that of the democratic Rechtsstaat always coexisted in the modern history of Central and Eastern Europe, with the former representing the historically more weighty tradition in the region. From this perspective, the notion of a socialist Rechtsstaat is a specific and historically located subset of the notion of an authoritarian Rechsstaat, which had many historical forms in the region evolving throughout time.

As the doctrine and practice of socialist constitutionalism dynamically developed in the 1980s, the dissident constitutional vision, too, began to consolidate. Dissidents continued challenging the repressive legality of the system and pointing out the internal contradictions of the evolving vision of the authoritarian socialist Rechtsstaat. They started offering their own evolving vision of a democratic Rechsstaat based on human rights observance.Footnote ¹⁹ Hence, from this point of view, the 1980s were a decade of an increasing confrontation between two semiotic and ideological systems, two mutually encountering, evolving constitutional imaginations: socialist legalism, with the socialist Rechtsstaat as the leading motif in the second half of the 1980s, and dissident legalism, with the vision of the democratic Rechtsstaat as, progressively, its main vantage point.

14.2 Post-Communist Liberalisms and the Legacies of the Past

After the 1989 revolutions in East Central Europe, liberal constitutionalism and the rule of law were to have a crucial role in securing the transition to liberal democracy and market economy. The motivations for supporting liberal constitutionalist policies varied significantly among political actors. The non-violent revolutions of 1989 in East Central Europe are sometimes called legalist or constitutional – and for good reason. They happened in the foreground of ‘pre-constitutional’ round-table negotiations and represent an apogee of the struggle for the character of the Rechtsstaat in the previous decade.

After 1989, Western and global influence was of great importance in the spread of liberal constitutionalism in the region. Most constitutions in the region that were either new or amended shortly after 1989 feature institutions ‘borrowed’ from established Western democracies.Footnote ²⁰ The post-1989 democratic transition in post-communist Europe ushered in an era of ‘new constitutionalism’, which was supposed to be qualitatively different from the ‘old’ one and the classic liberal idea of the rule of law. With the human rights revolution of the last decade of the twentieth century, the constitutionalist tradition entered a new global stage, which was marked by the massive adoption of bills of rights and constitutional courts as the quintessential institutions of the new constitutionalism.Footnote ²¹ Liberal constitutional institutions symbolized by new or amended constitutions, bills of rights, and constitutional courts became an entrenched and influential factor in the political life of post-communist countries.Footnote ²²

Liberal constitutionalism theoretically had alternatives. Some scholars, such as Paul Blokker, detected ‘rudiments’ of alternative democratic constitutionalist visions in the late 1980s, coming from dissident democratic activism that stressed participatory and self-organizing elements.Footnote ²³ Yet a few of these visions translated into constitutional politics after 1989. The partial exception was Poland, where ‘civic constitutionalism’ became a synonym for the post-Solidarity democratic right’s struggle against the Western-inspired liberal constitutionalism promoted by liberal parties and the post-communist left.Footnote ²⁴ As such, what was envisaged as ‘civic constitutionalism’ became part of the party-political struggle and thus a political elite matter, contributing very little to citizens’ direct participation in the constitution-making processes.Footnote ²⁵

In retrospect, it often seems that the Western influence was overwhelming, for better or worse. Yet, the cultural, political and ideological pre-conditions for liberal constitutionalism to thrive must not be neglected. Local legal culture and political traditions mattered, as did the political constellations and struggles. In general, the politics of liberal constitutionalism were a true triumph in East Central Europe in the 1990s. However, behind the triumph was a rather heterogeneous coalition of interests and forces with diverging constitutional imaginations standing for very different understandings of what a constitution is and how the relations between the state, the rule of law, society, and the market should be organized. Liberal or legal constitutionalism of that period must, therefore, be understood as a composite notion. This chapter aims to unpack it by looking at the political and ideological currents behind its historical success.

Liberalism in post-communist East Central Europe was a broad and variegated ideological stream with a diverse genealogy. There are different ways of categorizing it ideologically, culturally and historically.Footnote ²⁶ For this chapter, I propose to speak schematically about two major liberal streams behind the visions of the democratic, parliamentary Rechtsstaat in the given period. The first one, human rights liberalism, stands for a broad and initially only vaguely defined political stream coming partly from a post-dissident environment and building the vision of constitutional democracy on the principle of the salience of human rights in political life and state organization. The second, neoliberalism, stresses the economic foundations of the transformation from communist etatism to a free society based on the market principle, where the rule of law was to play a central role. To understand the ideal-typical character of these categories is essential. They are designed exclusively to analyse the various liberal conceptions of the rule of law and their ideological anchorage. If we were interested in another aspect of post-communist liberalism and liberal transformation, such as the liberal understanding of civil society or the role of social rights, the categories would look different.

Given the historical development in East Central Europe after 1989, with the economic transformation towards market capitalism playing a central part, neoliberalism is considered the more influential form of liberalism in this period. Yet, in terms of both historical memory and the legal and constitutional anchoring of the emerging democracy, human rights liberalism, with its distinct post-dissident character, played a decisive role.Footnote ²⁷ The dissident experience of the struggle for civic and human rights against the repressive, illiberal dictatorship was not only compatible with the current West European liberal constitutional doctrine, especially its post-fascist branch, it also imbued it with a compelling historical justification.

Human rights liberalism in post-1989 East Central Europe was a broad political and cultural-political stream that continued to carry significant features of its dissident origin. As such, it was broader and vaguer than, for instance, the Rawlsian-style Western political liberalism of the time, which elaborated a project of a society based on legal equality and social justice. More than Rawlsian political liberalism, post-dissident human rights liberalism is reminiscent of the broad current of thought and politics, sometimes referred to as ‘Cold War liberalism’.Footnote ²⁸

The post-dissident liberal camp – in contrast to the neoliberals – defined itself as liberal only reluctantly, sometimes to the point of being resentful about the label. Its representatives among former dissidents were not only icons of dissident cultural liberalism, such as Václav Havel, György Konrád or Adam Michnik, but also conservatives, such as Tadeusz Mazowiecki, Petr Pithart or Gaspár Miklós Tamás, and radical democrats and leftists, such as Jacek Kuroń, Miklós Haraszti, Petr Uhl or Miroslav Kusý. Many of these ‘liberals’ understood their liberalism – if they ever accepted the designation – as a commitment to basic liberal-democratic institutional structures such as the rule of law, which they then combined with a plethora of conservative, socialist or radical democratic sensibilities. They often had wildly divergent political visions and understandings of democracy. Yet, in terms of historical consciousness and vague constitutional imagination, they had much in common due to their shared past.

As a broad political, intellectual and cultural stream, human rights liberalism should not be conflated with liberal constitutionalism. However, the two phenomena are closely inter-related. Liberal constitutionalism as an expertise in constitutional matters provided human rights liberalism with a constitutional imagination that defined, to a great extent, their constitutional agenda. Human rights liberalism, in contrast, supplied liberal constitutionalism with historical legitimacy. The dissident genealogy was probably not an element sine qua non. Liberal constitutionalism would appear after 1989, even without the former dissidents’ moral and political support. However, the fact remains that former dissidents, representatives of human rights liberalism, gave liberal constitutionalism in East Central Europe moral standing and a mark of authenticity.Footnote ²⁹

The struggle against the repressive authoritarian dictatorship was the defining experience of former dissidents. The rule of law was supposed to be a major means of eliminating the possible ‘totalitarian comeback’ and taming possible authoritarian intentions of the new political movements and their leaders. Such concerns, widely spread in post-dissident politics and media, were linked to the programmatic idea, generated by dissident strategists from their opposition experiences, about a ‘self-limiting revolution’.Footnote ³⁰ During Solidarity’s upheaval or in the democratization movements on the eve of the 1989 democratic revolutions, conscious self-limitation was supposed to prevent radicalization on both sides of the power conflict and, thus, the potential for violent conflict. The newly built democratic system was likewise meant to incorporate self-limiting mechanisms and a strong system of checks and balances against any claim to a usurpation of power or the temptation to settle scores violently.

Human rights liberalism and its anti-authoritarian and anti-populist motivation were not the only factors behind robust constitutional politics. There was also the widespread belief of the liberal reformers of the early 1990s – post-dissident or not – that speedy economic reforms would facilitate political and cultural democratic change. Many were convinced that learning lessons from the past and safeguarding against its repetition were important. However, it was equally essential to set the right course for a free society, which presupposed, above all, the creation of functioning market structures. Only a few of the liberal reformers were dogmatic neoliberals. Rather, their projects tended to be based on the current neoclassical mainstream of economics, which already contained a mixture of distinct neoliberal elements. This approach was referred to at the time and later in literature as the so-called Washington consensus.Footnote ³¹ Part and parcel of it was the conviction that fundamental economic reforms should not be the subject of democratic politics and political negotiation, at least not at the beginning.

The latter idea was firmly rooted in both the global neoliberal doctrine as well as the practice of economic reformers in the region. The long-term goal of all different types of neoliberalism in the twentieth century was to separate the nation state’s powers and the rules governing economic life. In other words, to foster an ‘economic constitution’ that could exist outside the nation state and democratic parliamentary sovereignty. Based on their historical observation and analysis, neoliberals have long assumed that democratic participation often obstructs desirable economic change.Footnote ³² This concern was the driver of the ordoliberal plan, formulated by Wilhelm Röpke with the help of Carl Schmitt’s conceptual frame, to provide a double government comprising a strained balance between the world of politics and nations (imperium) and the world of economics (dominium). Such an arrangement observed by the guardians of economic constitutions would keep economic governance safe from mass democratic demands for social justice and redistributive equality. Transposed into the globalizing condition, such ordoliberal tenets translated into a design of international economic rules that would constrain sovereign nation states so that they could not endanger the international economic order.Footnote ³³

Often criticized predominantly as ‘market fundamentalism,’ from the perspective of contemporary legal and historical literature, neoliberalism now increasingly appears as a distinct legal or juridical project whose main aim is not simply to liberate markets but to redesign state and other institutions to protect markets. Some authors attempt to define ‘neoliberal constitutionalism’ both as a theoretical concept and a particular political practice in countries such as Chile, the ‘first laboratory of neoliberalism’, or the United States, where neoliberal principles permeate fundamental constitutional structures.Footnote ³⁴ So far, however, ‘neoliberal constitutionalism’ remains a theoretical project rather than a widely accepted analytical tool. One reason for this is the fact that a great part of Western constitutional theory tends to be oriented prevalently towards a ‘negative’ understanding of the field, emphasizing how constitutions constrain power, limit government and prevent majoritarian tyranny.Footnote ³⁵ In that respect, the supposed ‘neoliberal constitutionalism’ would be very much a part of the constitutionalist mainstream – wary of all possible democratic excesses – rather than a separate entity.Footnote ³⁶

Neoliberal ideas were close to many liberal reformers in Central and Eastern Europe. Not because they were devout followers of Hayek or Buchanan but because these ideas offered the imminent promise of a proper tool for the gigantic task of economic transformation. Moreover, to a large extent, neoliberal ideas also corresponded to their own historical experience. In late socialism, the economic experts, technocrats and reformists were used to bureaucratic-technocratic governance. As advisors of communist rulers, they did not have political power nor did they have to be accountable to any constituency. Their historical experience taught them that the desired change towards a functional economy was not easy to achieve in uneven negotiation with the power centre. At the same time, any such change in the past was prepared in the front rooms of political power, far from direct democratic control.

In Poland, another piece of accumulated historical knowledge directly related to the post-communist economic reform was the experience with the first Solidarity in 1980–1981. With its socialist egalitarian economic program and tendencies towards worker’s self-management and economic democracy, it was unanimously read by both reform communists as well as Polish liberals as a negative example of the chaos that an unleashed and unfettered democracy can bring to the economy and to reform plans.Footnote ³⁷ So, it was better to leave the re-establishment of the functioning market economy to the experts and technocratic decision-makers without much political debate.Footnote ³⁸

Neoliberalism and its constitutional imagination had certain intellectual and socio-cultural roots in East Central Europe during the last decades of state socialism. Less so among the democratic opposition, even though some neoliberals, such as the Gdańsk group around Donald Tusk, had a dissident past.Footnote ³⁹ These roots were more present among various semi-independent circles critical of the communist regime and the anti-communist opposition, such as the Cracow neoliberals and neoconservative circles around Mirosław Dzielski.Footnote ⁴⁰ But the most consequential environment from where leading neoliberal reformers such as Leszek Balcerowicz, Václav Klaus or Lajos Bokros emerged were expert circles and epistemic communities at official academic, administrative and advisory institutions. Since the early 1980s, these milieus and ‘grey zone’ expert circles, far from consisting of neoliberal zealots, increasingly emphasized the importance of the economic sphere, the need for its thorough reform and its primacy over politics.Footnote ⁴¹

The final issue to tackle in relation to the constitutional imagination in the transition period is the conscious historical burden of post-communist liberalism.Footnote ⁴² All variants of liberalism at the time were a mixture between the party of memory (the past) and the party of hope (the future). Human rights liberalism and neoliberalism were both oriented towards achieving the transition – that is, getting rid of the burden of the past to produce a desired liberal democratic future. Human rights liberalism defined the burden of the past in cultural terms, stressing the memory of totalitarianism to foster civility. Neoliberalism defined it in economic terms, stressing the hubris of the planning state to foster the market society. Both sought to constitutionally enshrine fear of repeating the past as a mechanism of prevention. Both also dealt with the homo sovieticus problem, in other words, the supposed immaturity of the citizenry in a free society, for which both designed a sort of liberal pedagogy to deal with that problem.Footnote ⁴³

The politics of liberal constitutionalism after 1989 was the practical realization of liberal post-communist historical sensitivities. Its main aims were to keep people away from the populist temptation, to overhaul the economic foundations of society, and to prevent future misuse of power. As a result, independent and robust juridical institutions, with the constitutional courts at the helm, and the liberal checks and balances, were established. The purpose was not to hinder the development of democracy. Rather, it was supposed to be a democracy protected from itself, at least for some time. Solid constitutional safeguards were intended to help the young democracy develop under the protection of strict rule of law institutions. The intention was to limit the potential majoritarian and collectivist features of democracy in the interests of protecting individual and minority rights as well as the developing market economy. Liberal reforms took the lack of civility as a fundamental premise for their version of constrained democracy that institutionalized mistrust in the immature citizenry.Footnote ⁴⁴ Later, these efforts to cultivate a democratic and liberal culture in a sort of greenhouse were criticized by both the left and right as undisguised liberal efforts to depoliticize democracy and gut the power of the political sovereign, the people.

14.3 The Rule of Law in the Post-Communist Constitutional Imagination

In this final section, we will look at how the substantive political profiling within and outside the liberal camp imprinted itself on the constitutional imagination of emerging democracies in ECE or, more specifically, on the notion of what the rule of law is and what it should do.Footnote ⁴⁵ I can only attempt a preliminary typology here, as a detailed analysis requires more extensive research. I use the context of the Czech political and constitutional legal environment of the early 1990s as the main reservoir of examples. However, in an attempt to capture more general features of developments across the ECE region, I also refer to comparable concepts and key actors in other neighbouring countries as suitable examples.

Rule of law is a narrower concept than constitutionalism. Both deal with how the powers of government and authorities are to be limited. However, while constitutionalism works with a range of devices and procedures and assumes a more comprehensive political theory, the rule of law, understood in a narrower sense, ‘is based on values which are inherent in the very notion of law itself’.Footnote ⁴⁶ In theory, therefore, it is easier to find agreement on the requirement of the rule of law than on the broader concept of constitutionalism. And yet, rule of law is an essentially contested concept, which means that the interpretative struggle concerns the core, not just the borderlines of the idea. ‘There are many different definitions of the rule of law, and none of them can claim to be canonical’.Footnote ⁴⁷ Although they agreed on the priority of rule of law for the post-1989 transition policy, variants of the local liberal understanding of rule of law, advocated and elaborated by representatives of human rights liberalism and neoliberalism, had quite different motives and arguments. Theoretically, we could think of this as the difference between Dworkinian and Hayekian conceptions of the rule of law.

What was for a long time predominantly the domain of domestic legal politics, the rule of law internationalized as it became, in the second half of the twentieth century, an important tool in international development policy. In the first post–WWII decades, ‘law and development’ politics was based on the Keynesian paradigm of strong government and industrialization models. It was tested in the post-colonial world above all in Africa and Latin America. From the 1980s, however, a significant change occurred. The post–Cold War ‘rule of law promotion’ embraced by the World Bank, the International Monetary Fund (IMF) and other international financial institutions (IFIs), but also regional development banks emphasized ‘opening’ the developing states – thus also post-communist ones – towards export-led growth, foreign investment and global competition. This shift in the rule of law understanding meant placing serious constraints on the nation state’s economic policies while enhancing legal structures (the rule of law institutions) guaranteeing the protection of foreign investment and international trade.Footnote ⁴⁸

International development policy played a crucial role in the post-communist transformation. It greatly enhanced the prestige of rule of law conceptions that leaned towards the neoliberal pole by making them compatible with the legal-economic discourse that prevailed in the IFIs and, increasingly, in the European Communities.Footnote ⁴⁹ However, neoliberals in East Central Europe did not develop a self-standing constitutionalist doctrine after 1989. The fact that they relied on the existing liberal constitutionalist framework is quite consistent with what we know about the spread of neoliberal economic ideas in post-communist Europe. The ‘neoliberal revolution’ after 1989 did not prove to be an outburst of extremist neoliberal ideas promoted by ‘market fundamentalists’ but was instead a neoclassical synthesis leaning on the current mainstream of Western economic theory.Footnote ⁵⁰ We can say the same about neoliberal constitutionalism. There was hardly an outburst of distinct neoliberal economic constitutionalism anywhere in the region. The Western liberal constitutionalist mainstream and its resourceful adaptation and elaboration were all that mattered in the constitutional debates and policies. Thus, it is within this mainstream and especially in its subset leaning more toward ‘negative constitutionalism’ that we have to look for the neoliberal premises taking root.

To date, we have no studies on what legal concepts played a primary role in the thought and practice of various neoliberal milieus before and especially after 1989 in the region. Generally, however, it seems safe to say that the greatest influence was the thinking of Friedrich A. Hayek, who devoted most of his later work to the interpretation of the role of law in securing liberty and prosperity, as well as the difference between law and legislation.Footnote ⁵¹ Hayek’s influential and wide-ranging work has had a profound impact on political and social thought in the region since the collapse of the communist dictatorship, especially during the democratic transition. Here, we will limit ourselves to two aspects of his rule of law concept, namely its connection to political liberty and its moral dimension. In his 1943 Road to Serfdom, Hayek fleshed out the difference between a ‘free country’ where the government was bound by the rule of law and a ‘country under arbitrary government’. In other words, politically determined rules needed to be relatively fixed and publicly known to create a stable and accountable framework in which individual planning and complex but non-coerced social coordination could flourish. In his later work, such as The Constitution of Liberty, Hayek elaborated on the social institutions crucial for attaining the goal of political liberty. The rule of law – where laws are prospective, equally enforced, abstractly stated, and stable – was a crucial mechanism for supporting institutions such as free markets and democratic polity, with a strong constitution protecting the private sphere and well-defined and enforced property rights, all of which permit individuals to pursue their vales and allow them to make the best use of their localized knowledge.

Although sometimes dismissed as a ‘market fundamentalist’ by his opponents, Hayek had a distinct moral dimension in his teachings. In his late work, he distinguished between ‘spontaneous orders’ and ‘constructed orders’ such as socialism. Many traditional social institutions such as language, money, the common law, the moral code, or trade were, historically, instances of spontaneous orders. Because they were not the product of human design but of myriads of individual actions and dispersed knowledge, they were able to adapt more readily in environments characterized by rapid change and widespread uncertainty. Constructed orders, in contrast, lacked such adaptability as state socialist planning perfectly exemplified.Footnote ⁵²

Taking after the great Austrian thinker, neoliberals in ECE understood the rule of law primarily as a precondition for the ‘constitution of liberty’ and the functioning market mechanism enabling socioeconomic prospects and, thus, societal peace and progress. But they put even more emphasis on the free market as potentially one of the most readily available spontaneous orders. Most of these were destroyed by the extreme ‘constructivism’ of communist revolutions in the region, but the free market promised to be the first to be re-established again. The Hayekian conception of the rule of law was not devoid of a moral dimension. However, its significance lay primarily in its instrumental function, serving chiefly to ensure the proper functioning of the key mechanism of social coordination—namely, the market. Furthermore, law was imagined and constructed as a form of pedagogy for constituting citizenry and as an institutional system for regulating and enforcing the new economic norms. In sum, the function of law in the understanding of post-communist neoliberals was to work primarily towards economic ends and the creation of homo economicus.

Hayek, in general, and his specific understanding of the rule of law was much more influential among non-lawyers, especially economists and politicians, who were often the central figures in the post-1989 market economic transformation. Hayek, the so-called Austrian School, and neoliberalism generally provided reformers with the most comprehensive model of the working capitalist system (modelled on Anglo-American capitalism), which – despite Hayek’s prohibition of social constructivism – formulated capitalism as an ideological project and provided a graspable idea of the path from point A, the socialist planned economy, to point B, market capitalism.Footnote ⁵³ Also, Hayek was one of the few liberal thinkers of the twentieth century who fundamentally addressed the issue of freedom and, of these, Hayek was the most systematic. Moreover, his theory of freedom was developed to counterbalance the temptations of totalitarianism from the right and the left, which was eminently suited to the needs of the fundamental transformation from a communist welfare dictatorship to a liberal democracy based on a market economy.Footnote ⁵⁴

We most often encounter Hayek, as a philosopher of freedom and theorist of a specific kind of liberal constitutionalism, in the contemporary journalism of the future fathers of economic reform, such as Leszek Balcerowicz in Poland and, even more so, the so-called Gdansk liberals such as Jan Szomburg, Jan Lewandowski and Donald Tusk.Footnote ⁵⁵ In the Czech context, the most important expert and promoter of Hayek was the economist Tomáš Ježek, the Minister of Privatization in 1990 and advisor to Václav Klaus. In the 1980s, Ježek translated some of Hayek’s most important works, such as The Road to Serfdom or Law, Legislation and Liberty, for the samizdat and promoted Hayek as the most important beacon of liberal order.Footnote ⁵⁶ In the 1990s, Klaus himself – although primarily coming to neoliberalism from monetarist positions and not a devoted Hayekian like Ježek – discovered Hayek for himself, often quoted him, and even more often used his political philosophy to defend his vision of economic transformation in Czechoslovakia, later Czechia.Footnote ⁵⁷

Conversely, Hayek was not a basic reference figure for most constitutional lawyers and legal philosophers. He was hardly a part of the standard constitutional legal curriculum during the second half of the twentieth century because, among other reasons, his thinking hardly fit into the post-war Western mainstream liberal constitutionalism based on a centralized constitutional review of legality and the growing importance of human rights. Yet, among the prominent figures of constitutional law in ECE, we find those on the ‘negative side’ of the liberal constitutional spectrum who claimed Hayek in one way or another in their writings and considered him indispensable for understanding the broader societal implications of the liberal constitutional project.Footnote ⁵⁸

In the Czech context, a good example is Vojtěch Cepl, a civil lawyer, university teacher and one of the prominent personalities of the first generation of the Czech Constitutional Court, active between 1993 and 2003 and figuring sometime under the nickname ‘Havel’s CC’. According to the testimony of his colleagues and pupils, he was mainly a rhetorician, not a writer, that is, he left behind only a meagre written legacy. Through his informal influence and quite a visible media presence, however, he was considered one of the most influential liberal-conservative lawyers of the early transition period.Footnote ⁵⁹ A member of the neoliberal conservative ODA party, a junior partner to Klaus’ transformation governments, he started his political engagement as a Vice-Chairman of the Legislative Group of the Ministry of Finance under Václav Klaus. Somewhat later, he also became a member of the drafting committee for the Czech Constitution adopted in December 1992 that has remained in force until today. Cepl, who frequently confessed his US inspirations, was one the the most influential members of the drafting committee.Footnote ⁶⁰ In his views on the constitution and constitutional law, Cepl was hardly a radical neoliberal. He was able to defend the principles of constitutional parliamentary democracy as well as the work of the Constitutional Court against the radical economic reformers with Klaus on the top. Yet, in his public statements on the principles of the rule of law as the basis of a liberal free order and in his conception of the Rechtsstaat in its historical and moral dimensions, the distinctive influence of Hayek’s thought is unmistakable.Footnote ⁶¹

Quite a different legal and constitutional imagination was coming from post-communist human rights liberalism. Having a strong dissident imprint, the democratic Rechtsstaat or rule of law was seen by human rights liberals in a prevalently Kantian way, that is, as a morally based institutional framework for ‘eternal peace’, falling neatly within the tradition of the classical rule-of-law liberalism marked by the lineage of Locke, Kant and Tocqueville.Footnote ⁶² In this sense, human rights liberalism was fundamentally linked to the liberal-constitutional mainstream prevailing in Western democracies at that time, where the rule of law stood for an autonomous value corresponding to the idea of freedom on an individual level. The rule of law in this view is understood from a substantive position leaning on the classical liberal tradition, European humanism after the Renaissance and humanist anthropology, while also being enhanced by the rise of human rights ideas in the twentieth century.Footnote ⁶³

To subsume most post-communist neoliberals and their constitutional imagination under Hayek’s conception of the rule of law seems historically justifiable. It is less justifiable to present Ronald Dworkin as the common denominator of post-communist human rights liberals and their constitutional imagination. If only because Hayek was read and admired by neoliberals, whereas Dworkin was hardly known in the region and was read by very few philosophers and legal theorists in the 1980s and 1990s. Moreover, Dworkin’s understanding of the rule of law was derived primarily from the historical experience of the United States and common law countries (which is actually also the case for Hayek, despite his origins), thus making it more difficult to apply it to legal and political systems based on continental legal tradition. And yet, Dworkin’s rights-based conception of the rule of law seems to be a perfectly fitting description of the type of thinking that dominated among many human rights liberals, with rights at the centre of their constitutional imagination and representing the so-called substantive or material conception of the rule of law.

The concept of the rule of law per se was hardly a major preoccupation for Dworkin at any time of his prolific career. As observed by David Dyzenhaus, the twentieth-century philosophy of law paid relatively little attention to the rule of law because the major issue was ‘what the law is that rules, after which there is little left to say about the rule of law’.Footnote ⁶⁴ Not surprisingly liberal authors provided mostly accounts linking the rule of law concept with traditional liberal values aimed at protecting basic individual freedoms. The major difference, then, was what hierarchy of these values they imagined and how these values were to be written into the construction of the rule of law and the constitutional order.

Dworkin’s approach to the rule of law stands for a paradigmatic example of the ‘substantive view’. He developed his theory in a decades-long polemic with the liberal mainstream in legal philosophy, strife often described as a positional struggle between legal positivism and anti-positivism. Representing the latter, Dworkin distinguished between what he called the ‘rulebook’ conception of the rule of law, advocated by positivists such as H. A. L. Hart or Joseph Raz and the ‘rights’ conception that he elaborated on. In the positivist view, the power of the state should never be exercised against individual citizens unless it is ‘in accordance with rules explicitly set out in a public rule book available to all’.Footnote ⁶⁵

So, these rules pre-determine the behaviour of citizens and government officials. But they could be changed by the lawmakers and replaced by other rules. Such an idea of the rule of law is, therefore, rather narrow and non-substantive, yet not value-free. For liberal thinkers leaning towards positivism, such as Joseph Raz, the rule of law and constitutionalism have primarily negative values. They are designed to minimize harm to the freedom and dignity of individual citizens against whatever noble causes of government and other powers. Raz was far from merely negative and proceduralist; in his view, the rule of law is linked to various fundamental liberal values such as individual autonomy and respect for human dignity.

But Dworkin’s substantive approach to the rule of law goes further, building on different ideas of the nature of law. If, as Dworkin argues in his oeuvre, there is a substantial connection between law and morality, the rule of law must be, to some extent, the rule of good law. The positivist rule of law, determining primarily rules of conduct, has nothing to do with substantive justice exercised by judges in courts. In contrast, Dworkin’s ‘rights conception’ sees the rule of law and substantive justice as intrinsically connected. For him, the rule of law cannot be limited to certain formal criteria of a ‘proper legal system’, for individuals also have ‘moral and political rights’ that need to be regularly enforced upon demand of individual citizens through courts.Footnote ⁶⁶ It is truer of Dworkin than ‘of any other that his account of the rule of law is an account of the particular theory of liberal justice that he argues is embedded within the law’.Footnote ⁶⁷

Not all of the post-communist liberals that we categorized in our ideal-typical model under human rights liberalism were Dworkinians. In fact, only a very few of them were so consciously. The most obvious example, by any means, is János Kis, liberal philosopher and former leader of the Hungarian democratic opposition in the 1980s, who at best represents a direct connecting line between the dissident human rights activism prior to and the liberal order and constitutional democracy after 1989. Although remaining active as a public intellectual, Kis soon chose an academic career instead of politics. He became a creator, among others, of an original theory of constitutional democracy characterized by a striving for balance and mutual conditioning of principles of liberal equality and constitutional democracy, an approach highly valued by Dworkin himself.Footnote ⁶⁸

Although few of the active supporters of liberal constitutionalism in the post-communist ECE were as directly influenced by Dworkin and his theory of rights as Kis, many of them participated in the victorious march of a substantive conception of the rule of law, with an active constitutional court at its head, whose role was not only to protect constitutionalism but also to contribute substantially to the formation of a new, democratic and rights-based legal and political culture. Vladimír Klokočka, a legal scholar, political scientist, signatory of Charter 77 and another constitutional judge of the first constitutional court (CC), is a good example in the Czech context. A prominent representative of the value-based conception of the constitution and a defender of supra-positive law, he was widely seen as a promoter of the substantial conception of the rule of law in the early liberal democratic Czech public and legal-professional discourse, as well as in the jurisprudence of the first Czech CC.Footnote ⁶⁹

Already at the time of the democratizing Prague Spring between 1967 and 1969, Klokočka, as a reform communist and an expert on electoral systems in Western European democracies, prepared a proposal for a new electoral law for the Czech National Council (i.e., the Czech Parliament in the new socialist federation), which was not implemented due to the Warsaw Pact invasion and authoritarian consolidation. After signing Charter 77 and enduring subsequent police harassment, he emigrated from Czechoslovakia to West Germany. Although Klokočka did not belong to the Czech democratic opposition or active democratic exile, he found himself, after 1989, in the circle of President Havel. At the same time, he was one of the prominent publicly-engaged liberal legal experts.Footnote ⁷⁰ He returned permanently to Czechia as a newly elected judge of the Czech CC in 1993, where he was among the most outspoken and trustworthy – due to his exile experience – advocates of using the case law of the German Federal Constitutional Court as inspiration for post-communist constitutional courts.Footnote ⁷¹ Klokočka was, among other things, the author of the first-ever plenary ruling of the Czech CC that assessed the constitutionality of the law on the illegality of the communist regime and resistance to it. In this ruling, he subscribed to the value-based conception of the Constitution, and it is generally considered to be a ground-breaking decision in its substantive argumentative structure.Footnote ⁷²

But the rights-based rule of law conception, along with the idea of substantive justice and judicial democratic activism, aptly describes not only liberal but also many conservative constitutionalists of that period. Sometimes, as in the case of László Sólyom, they even became the foreground figures symbolizing the liberal constitutionalist hegemony of the period. Sólyom was the most dominant jurist in post-1989 liberal democratic Hungary and one of the most visible personalities in the constitutional realm in the whole region. He was the first Hungarian Constitutional Court’s Chief Justice from 1990 to 1998 and the main symbol of its extraordinary powers in Hungarian politics, epitomized by the doctrine of the ‘invisible constitution’.Footnote ⁷³

In Czechia, there was no one in the liberal-conservative camp of similar stature and influence as Sólyom. Still, there are similar figures in constitutional law and practice with regard to their Christian Democratic ideological and Catholic religious background, such as Vladimír Čermák. Yet another in the bright line of ‘Havel’s Constitutional Court’ judges, a lawyer and philosopher, liberal-conservative thinker and a devout Catholic, he too was an outspoken advocate of the substantive rule of law conception in the post-communist constitutional imagination. His personal history is quite different from most of his fellow constitutional judges since he was not a member of the legal or political establishment until he joined the institution. With a connection to the so-called underground Catholic Church, he was affiliated with the vibrant cultural milieu in Brno towards the late 1980s. His main scholarly work, which places him in the field of philosophy and general sociology rather than law, is his five-volume oeuvre ‘The Question of Democracy’, published successively between 1992 and 1999 and comprising more than 1,200 printed pages. The work was written in seclusion between 1975 and 1988, while Čermák worked as a corporate lawyer after being dismissed from the judiciary at his own request in 1975. It is a comprehensive, systematic reflection on the question of democracy as both a political principle and a way of life, in which the author consciously draws on Masaryk. It is quite the paradox that a trained lawyer and judge devoted only marginal space of his extensive and systematic work on democracy and its preconditions to the topic of the rule of law and the lawful state – a mere passage about the role of the judiciary in modern political regimes.Footnote ⁷⁴

Čermák, however, together with Klokočka, was one of the most prominent personalities of the first CC, contributing to its proverbial activist democratic ethos, which was reflected in the Court’s jurisprudence. As shown by some of the CC’s opinions and as he himself later reflected in some interviews, he was trying to bring the values of a substantive democratic rule of law to the interpretation of law both at the constitutional and general judiciary levels. Along with Klokočka and some others, he stood for a distinctly supra-positivist conception of law and justice since, as he repeatedly emphasized on various occasions, ‘law is more than law’. In this view, law must be framed in the general social context and democratic principles in order to be understood and accepted by citizens as a legitimate exercise of justice.Footnote ⁷⁵

However, we also find many post-communist liberals who did not share these presumptions about the rule of law presupposing the rule of the good law. Most legal practitioners and jurisprudence scholars came not from the dissent or democratic exile but rather from the official institutions supported by the communist state and from the so-called grey zone, that is, the broad layer of experts that was critical of the late communist state but was not willing to go into direct conflict with it, as the dissidents did. Many of these people on the liberal side of the political spectrum shared a constitutional imagination closer to the rule-book conception of positivists such as Hart or Raz (i.e., the opponents of Dworkin in the liberal camp). They recognized the increasing role of human rights in domestic and international politics. However, in their conception, law and the rule of law were linked to human rights only ideologically or symbolically, not substantively.

There is a lively debate today in legal philosophy about the nature and variety of legal positivism in domestic and international systems of law. The Central European tradition plays a significant role in these discussions, with the influence of Hans Kelsen looming large.Footnote ⁷⁶ Much less is known, however, about the multi-layered life of the legal positivist tradition in Central Europe itself, esp. the non-German speaking part. One of the areas where the issue has been debated is the question of the lingering influence of socialist law in the constitutional legal imagination after 1989. This includes discussions about institutional legacies, the fundamental differences between socialist and Western liberal constitutionalism, socialist values embodied in one way or another in post-socialist constitutional orders and also positivist or formalist practices and behavioural models among legal practitioners.Footnote ⁷⁷

Here, we are interested solely in one aspect, namely how late socialist lawyers, judges and jurisprudence scholars negotiated their position during the triumph of liberal constitutionalism in post-communist ECE and how they related to the liberal rule of law concept. As much of the literature claims, after abandoning the original Marxist revolutionary dreams about abolishing the state and law in a classless society, the communist state engendered positivism in legal thought and practice. This development found fertile ground in ECE, where strong traditions of legal positivism had survived since the interwar period. In the Czech context specifically, the so-called Brno normative school of František Weyr, contemporary and friend of Hans Kelsen, was considered the most significant Czech pre-communist legal tradition. This tradition found its communist metamorphosis in the thinking and practice of legal experts and practitioners of the late socialist period. As argued, for instance, by Zdeněk Kühn, legal positivism in a communist garb served as a counter-reaction to politicized Stalinist legal practice and its turn, in practice, to textual positivism or legal formalism represented a standard in the legal professions, especially the judiciary, since the 1960s.Footnote ⁷⁸

Legal positivism was a suitable thinking tool and attitude of legal theorists and practitioners in the consolidation period of the communist dictatorship. After the ethos of social and political revolution had disappeared from the public sphere or was limited to ideological proclamations and the law was becoming an increasingly important means of governance, the positivist approach enabled them to achieve an acceptable degree of apoliticality (insofar as this is possible in law) and to devote themselves to their profession in good conscience. Positivists usually hold that law is the command of a sovereign, that law is the product of explicit or tacit legislation or, in other words, that all law is positive law. It is, therefore, a matter for the political sovereign and the legislator what law and on what principles will be enacted. But it will always be law. This position also opens up a considerable range of possibilities for political worldviews. Legal positivism writ large can be associated with a variety of political ideologies and attitudes. A legal positivist can be a Marxist or communist but also liberal, social democrat or national conservative. In other words, from this point of view, political allegiance and legal expertise are theoretically easily separable.

Late communist legal positivist lawyers were well prepared, both in theory and practice, for the relatively easy adoption of liberal constitutionalism after 1989. This applies not only to judges, lawyers and prosecutors but even to jurisprudence scholars who, more than others, were compelled to explicitly express their loyalty and ideological commitment to the cause of communism. Prominent socialist constitutional lawyers and legal theorists such as Josef Blahož, Jiří Grospič and the somewhat younger Aleš Gerloch fairly effortlessly shifted to a position in favour of the democratic rule of law after 1989. In the period before 1989, they had no qualms about respecting the system of communist dictatorship and the constitutionally undefined but comprehensive political sovereignty of the communist party.Footnote ⁷⁹ After the democratic revolution, they accepted the fact that the one-party dictatorship had been replaced by a politically pluralist liberal-democratic state, whose basic construction and fundamental values were substantially different. However, this difference did not necessarily apply to the principles of the functioning of law in society. As legal positivists, they cultivated an approach to understanding the operation of law in society, which functions similarly in highly modern societies, regardless of the political principles on which they are based.Footnote ⁸⁰

Referring to the Czech example, we can see that communist legal thinkers and practitioners could have developed in different directions over time, depending on the overall political changes and their individual situation. Those who were associated with the reform process of the Prague Spring in the 1960s and later became part of the human rights opposition in dissent or exile, including the aforementioned V. Klokočka (but also Z. Jičínský, F. Šamalík, P. Pithart, P. Rychetský, and many others), often figured, after 1989, as leading representatives of pro-Western liberal constitutionalism of the Dworkinian type. The rule of law became the major pillar of the new democratic regime, and it was supposed to be the rule of good or, at least, not evil law. Often, those who were reformists in the 1960s but who linked their fate and careers with the Husák consolidation regime in the two following decades, such as the aforementioned Jozef Blahož or Aleš Gerloch, did not become the main spokespersons of liberal constitutionalism but adopted it unreservedly nevertheless. Their approach, however, was siding much more closely with the positivist rule-book conception of the rule of law, where the nature of law was not systematically addressed.

We should keep in mind that what is presented here is only a preliminary typology using two opposite poles. Most individual representatives of liberal constitutionalism would probably find themselves somewhere between the two poles.Footnote ⁸¹ A case in point is the youngest generation, who grew up professionally in the era of late state socialism but often received a part of their postgraduate or postdoctoral education at Western universities in the late 1980s and early 1990s. More or less radically oriented reform-minded lawyers in the 1980s, they were strongly influenced by Marxist and post-Marxist critical sociology of law. It is from this generation that many of the greatest figures of liberal constitutionalist theory in post-communist ECE were recruited, such as András Sajó in Hungary, Wojciech Sadurski in Poland and Pavel Holländer in Czechia. As a rule, their attitude to liberal constitutionalism, while generally supportive, is highly critical if not sceptical: liberal or legal constitutionalism is the best of what is available, but it does not mean it will work in every society.

Finally, to complete the typology, there were some on the margins of the ‘liberal constitutionalist consensus’ who did not accept the mainstream liberal constitutionalist doctrine and remained in mild opposition. A good Czech example is Viktor Knapp (1913–1996),Footnote ⁸² one of the greatest but also most controversial Czech jurists of modern times and an outstanding Marxist civil law scholar serving the Czechoslovak communist regime in all its phases.Footnote ⁸³ After 1989, Knapp remained a leading figure in legal studies, mildly critical of the post-communist developments. He distanced himself from the new political paradigm of liberal constitutionalism in various principal ways. Even in the 1990s, for instance, in accordance with socialist constitutionalism, he maintained his lifelong view of state power as unified, separated only in terms of its different functions, not in terms of checks and balances.Footnote ⁸⁴ He also treated the prevailing natural law theory espoused by the great majority of liberal lawyers and politicians with the benevolent indulgence of a seasoned doyen. ‘Nobody really knows anyway what natural law is, so what point would there be in arguing over it?’Footnote ⁸⁵ For Knapp, law was always a product of society and its power structure, not a codification of higher philosophical principles or moral rules.

As a respected teacher of a large part of the post-communist legal elite, as a leading expert on civil law, but also as a prominent figure in a number of legal subfields such as comparative law, legal cybernetics and so on, Knapp enjoyed considerable respect in the 1990s, which was reflected in his numerous academic positions. He once more became the director of the Institute of State and Law, and a member of the Board of the Czechoslovak Academy of Sciences and, somewhat later, a member of the government’s legislative council. At the same time, Knapp was in no sense at the centre of the newly emerging liberal democratic legal culture. He could have remained outside the ‘liberal consensus’ of the time, but his distanced and sometimes ironic views did not threaten the core of it, which was the liberal-conservative compromise over the rule of law. Knapp was neither a liberal lawyer nor an outspoken illiberal.

Knapp himself was not particularly interested in the rule of law. In a short essay on the rule of law concept, Knapp doubted that it could be precisely defined in terms of legal analysis because ‘it often tends to be understood intuitively or as a political postulate or political slogan, rather than scholarly’. While keeping his distance, however, he more or less subscribed to the liberal, positivist rule-book conception of the rule of law, stating that the rule of law is when a state ‘not only strictly observes legality as one of the defining hallmarks of the rule of law, but also sets limits on itself when using law as a means of governing a society’. He further elaborated that ‘Under the rule of law, the legal regulation of citizens’ behaviour is based on the principle that citizens are fundamentally free, and legal norms limit their fundamental freedom to the extent that is socially necessary’.Footnote ⁸⁶

14.4 Conclusion: Rule of Law Ruled Them All

The political and constitutional status of the rule of law seemed incontestable during the liberal democratic transformation of ECE in the 1990s. The concept of the rule of law played an important role in shaping the political compromise of the time, namely as one of the platforms on which that compromise could be built.Footnote ⁸⁷ However, political compromise based on the notion of the rule of law is not the same as agreement on what the rule of law means. As we saw in Section 14.3, there was a striking variety of ideas and understandings of the rule of law within the jurisprudence and constitutional practice of the time. Whereas the constitutional mainstream symbolized by the evolving constitutional doctrine of the new CC stood for the so-called substantial or material concept of the rule of law based on the primacy of human rights and their constitutional adjudication, a significant number of legal experts leaned instead towards a positivist, non-substantial conception of the rule of law, where human rights play a more symbolic supporting role. In the ‘liberal consensus’ period, however, we also find thinkers and practitioners closer to the neoliberal constitutional imagination with their concept of the rule of law inspired by Hayek’s legal thought, as well as representatives of the illiberal constitutional doctrine, who remained on the edge or outside the spectrum of the broad field of liberal constitutionalism, though not questioning the liberal concept of the rule of law in any fundamental way.

This diversity in itself is not surprising, and we can find similarities in many other countries and cultural regions. However, the striking degree of political consensus on the rule of law was due to specific historical conditions as well as the political situation during the early liberal transition period. In this chapter, I have attempted to link the constitutional imagination of the liberal era to this historical and political context in an effort to better understand the uniqueness but also the fragility of post-communist compromise on the rule of law.

The unique position of the notion of the rule of law as both a political ideal and a constitutional legal tool emerged historically as a result of the years-long political struggle between the late communist dictatorship and the human rights movement in the region. The ideological, political and semantic struggle between the evolving socialist constitutional project of authoritarian socialist Rechsstaat, or rule-by-law dictatorship, and its dissident opponents and their increasingly prominent vision of a democratic Rechtsstaat based on respect for human rights culminated in the ‘constitutional revolutions’ of 1989, where the rule of law played the role of the central unifying bolt. From a longer-term perspective, this historical constellation was yet another phase in the competition between different notions of the Rechtsstaat, namely democratic and authoritarian, a centuries-old tradition in the region.

Post-communist liberalism was the main political vehicle for the liberal democratic transformation in the ECE region. However, this aggregate notion contains considerable heterogeneity. For the purpose of this chapter focusing on constitutional imagination, we characterized the post-communist liberal spectrum as bound by two ideal-typical poles, the post-dissident human rights liberalism and neoliberalism, both with symbolic ties, ideological roots and inspirations in domestic as well as international contexts. The two strands of liberalism shared historical concerns regarding the need to overcome the communist legacy, yet they diverged in their interpretations of the communist experience and in their visions of the principal tasks required to achieve a future free and democratic society. Both were grounded in the core instruments of liberal constitutionalism, which emerged as the dominant constitutional doctrine in post-communist East Central Europe. However, as evidenced by the varying interpretations of the rule of law, liberal constitutionalism itself is a composite concept, encompassing a range of distinct constitutional imaginations.

The striking differences in the rule-of-law understanding did not matter much in the 1990s for, in most instances, these ideas and constitutional imaginations worked well in the liberal hegemony, contributing to the ‘liberal consensus’ of the time. In this sense, the historical situation was quite unique, for in different historical settings, the diverging understanding of the rule of law could have important, if not fatal, political consequences. It is, namely, of great significance whether the rule of law is understood as an autonomous value and thus an indispensable part of democratic order and societal peace, whether it is intrinsically connected to substantive justice exercise based on rights adjudication. Or whether it could be, in certain circumstances, replaced by an authoritarian Rechtsstaat (which has a rich historical tradition in the region) that would provide its supposedly most important function, that is the structural regulation of the market or legal field of political agency based on majoritarian democratic principles or some other way of choosing a political sovereign.

Yet these diverging understandings of what the rule of law is and what could be expected from it in the longer run were not thematized in the early transition years. There were other issues related to the rule of law, animating the political discussions of the time. For instance, whether there can be a rule of law without transitional justice and, in particular, whether the nascent rule of law can rest on the corrupt judges of the old regime.Footnote ⁸⁸ Conflicts over concrete implications of the rule of law in the political and social life of post-communist societies notwithstanding, the value of the rule of law remained unquestioned. What united all liberals and was shared by most other political streams – liberal conservatives, socialists or even a small number of radical democrats – was the importance of the rule of law and constitutionalism in the newly established democratic order. Most of the actors also endorsed, albeit for different reasons, the de-politicization function of the rule-of-law institutional mechanisms. Some due to fear of populism and misuse of political power, others with concern for the economic reforms and their possible disruption by democratic politicking. The political compromise in the rule of law might have been only superficial. Yet, it was highly productive in creating the liberal democratic political hegemony of the 1990s. And this is also why, after the dissolution of the hegemony, it became the main bone of contention.