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.

15.1 Introduction

In the contemporary Polish constitutional law discourse, the beginnings of modern constitutionalism in the Third Polish Republic (from 1989) are usually associated with the last decade of the Polish People’s Republic (1944–1989) (Polska Rzeczpospolita Ludowa – PRL). In this widely accepted narrative, modern constitutional thought emerged as a response to the painful experience of socialist authoritarian rule. On the contrary, the constitutional law thought developed in PRL is treated as non-existent or, at best, as invaluable and useless. It is simply assumed that the socialist constitutional theory – due to the absence of PRL’s sovereignty and this regime’s authoritarian character – was radically ideologized and subordinated to the realm of politics. Thus, the traditions and roots of genuine constitutionalism are traced back to the Second Polish Republic (1918–1939),Footnote ¹ the Napoleonic Duchy of Warsaw (1807–1815)Footnote ² or the First Polish Republic (1569–1795).Footnote ³ The European constitutional discourse goes even further in this regard. According to a quite popular narrative, the aspiration for a constitutional rule in Central Eastern Europe (CEE) had not emerged until the 1990s, and its emergence was stimulated and structured, above all, by the process of EU accession.Footnote ⁴

Both narratives are problematic. A one-sided and negative assessment of the Polish constitutional law thought of 1944–1989 overlooks its important features.Footnote ⁵ First of all, the authors expressing this assessment treat the entire period of PRL as consistent and uniform,Footnote ⁶ disregarding that post-1956, after the failed attempt to install Stalinism, the Polish academia began to enjoy at least some autonomy to pursue scientifically valuable discussions. Secondly, they overlook that any constitutional discourse is entangled with political ideology, which does not render it invalid. Thirdly, they reject the entire constitutional law thought of that period, without considering whether some parts of it could be potentially valuable and, as such, worth preserving. Not only does the European constitutional law discourse overlook the pre-1989 struggle for constitutional rule in the CEE countries, but it also ignores the pre-1944 constitutional traditions of these countries.

In this chapter, I argue that the role of constitutional law discourse in PRL was more complex and ambiguous than it is usually assumed and that the assessment of this discourse should give justice to its complexity and ambiguity. The way the Polish constitutional law discourse went through in the period of real socialism might be characterised as a path from a façade to the foundation for constitutional democracy.Footnote ⁷ Legal academia, by developing a doctrine of constitutional review from the late 1960s, enabled the subsequent transformation towards constitutional democracy. It prompted domestic political elites – remaining under internal and external pressure – to become the precursor of institutional changes in the CEE. The most essential element of these changes, the Constitutional Tribunal (Trybunał Konstytucyjny – TK), made Poland the only country in the Warsaw Pact with constitutional review. Despite the original intention of making the TK just another façade, it in fact played a crucial role in the constitutional transformation. From this perspective, the reforms of the 1980s should not be considered a rejection but, rather, an institutionalisation of the Polish constitutional law theory as it evolved over the previous decades. Consequently, the contemporary negative assessment of the constitutional legal thought from this period is oversimplified and unjustified.

15.2 Constitutional Law Thought in the Polish People’s Republic

15.3 Conclusion

In this chapter, I argued that the domestic constitutional law theory, as it evolved in 1944–1989, played an essential role in pushing Poland towards the direction of constitutional democracy which it eventually became in the post-1989 era. Is it naïve to assume that, in the authoritarian reality of PRL, the academia had any social agency? After all, one may claim, all the decisions were made by political elites that did not have to take into consideration the views present within the society. The political elites themselves were not even independent in their actions, as they had remained under a strong influence of the Soviet Union, were they? Perhaps, one may add, the changes in Poland were only a reflection of the greater changes in the whole Eastern Bloc that, starting from the 1980s, was in decline, caused mainly by economic problems.

It is important to stress, first and foremost, that the interplay between the events in the socio-political realm and the development of domestic constitutional law thought is beyond any doubt. Most important events in the history of PRL (October 1956, March 1968, December 1970, June 1976, August 1980), which all together gave birth to the civil society centred in the 1980s around the Solidarity, were accompanied and followed by the shifts in the constitutional law doctrine. The intellectual evolution was also possible thanks to the emergence of the new generation of constitutional law professors. Despite the initially façade character of the constitutional law doctrine, they had taken its substance seriously, namely not only as a legitimising tool of the socio-political and legal regime, but as a normative ideal that should be observed by State authorities. What facilitated this shift conceptually was the inclusion in the constitutional law theory from the first decades after the WWII theoretical claims compatible with the modern constitutionalism, such as the supremacy of constitution, its fully justiciable and binding character and its direct applicability. For all these reasons, tracing the evolution of the post-war Polish constitutional law theory, we speak of shifts and the evolution rather than raptures and the revolution.Footnote ¹²⁶

The conceptual easiness of this shift should not obscure its exceptional character. Poland – apart from Yugoslavia, that remained independent from the Soviet Union – was the only socialist country with an operating constitutional court in the region. Its establishment did not necessarily engender positive reactions in other socialist states. Thus, it is not possible to explain the emergence of the TK as a reflection of a broader tendency in the socialist bloc, as there was simply no such tendency. Or, to put it differently, in the absence of external factors that would explain the emergence of a constitutional court in socialist Poland, it is hard to downplay the role of internal factors. As I have demonstrated, the crucial role in this regard was played legal academia, which, starting from the late 1960s, developed a doctrine of constitutional review which eventually led to the establishment of a constitutional court – thanks to the emergence and efforts of the civil society in the 1980s.

Certainly, the decision to establish the TK was taken by the political elites rather than by professors of law. The representatives of legal academia, however, made this decision possible, as they delivered theoretical foundations for this decision. They also actively participated in setting up the Constitutional Tribunal. Subsequently, academics assumed the role of constitutional judges. As it has been noted in the literature, the epistemic authority of academia played a considerable role in building the authority of the TK as an objective and apolitical arbiter of State actions, which allowed the TK to push for the changes of the regime from within. These dynamics allowed for the transformation towards constitutional democracy, in which the TK played a crucial role. Thus, the constitutional law theory, which emerged in the 1950s as a façade legitimising the authoritarian rule, eventually became a solid foundation for the democratisation of the PRL. The role of constitutional law doctrine in PRL was more complex and ambiguous than it is usually admitted nowadays. Post-1989 constitutionalism did not appear out of nowhere, but – as in the case of many other European countries – from the internal demand to curb the authoritarian rulers.Footnote ¹²⁷ This development was possible thanks to the pre-war constitutional traditions of the region,Footnote ¹²⁸ as well as the survival of the non-socialist legal thought in the local constitutional imaginary.Footnote ¹²⁹

The argument presented here nuances the widely accepted narrative of the peculiarity and novelty of the emergence of constitutional rule in early 1990s in Central Eastern Europe. There are more similarities than differences between the countries of Western and Eastern Europe that wished to reject their authoritarian past through constitutionalism at different points in time. The similarities concern the aim of the reforms (a transition from authoritarianism to constitutional democracy seen as ‘the return to Europe’), but also their theoretical foundations (the non-socialist legal thought, namely Kelsenism) as well as the institutional means implemented to achieve this aim (the constitutionally entrenched rule of law implemented and guarded by the specialised constitutional court). This observation, on the one hand, sheds some light on the normative value of the post-1989 Central Eastern European constitutionalismFootnote ¹³⁰ but, on the other, it might imply that the emergence of the rule of law crisis in the region demands further explanations than those explaining it in terms of the alleged unsuccessful transplant surgery.Footnote ¹³¹ As addressing this issue in detail goes beyond the scope of this chapter, further discussions in this regard, especially investigating specific regional socio-political and economics factors, are needed.Footnote ¹³²

16.1 Introduction: Neoliberalization of Nordic Democracy?

The Nordic countries have a long history of being celebrated, by themselves as well as by others, as ‘models of democracy’ and, to a certain extent, they continue to be so today. The starting point of this chapter is the observation that the nature and characteristics of the ‘democracy’ championed by the Nordics has changed. No longer distinctively connected to national and popular sovereignty, public participation, social or economic equality, or civil society and labour market arrangements, Nordic democratic exemplarity is today increasingly associated with rule of law, individual and human rights as well as economic freedom. No longer a social democratic alternative, the Nordic countries are today excelling as exemplars of the universal principles of (neo-)liberal democracy that became dominant after ‘the end of history’.

There are always good reasons to be suspicious of claims to Nordic exceptionality. Nonetheless, this chapter proceeds from the idea that the Nordics shared a distinctive interpretation of the democratic ideals during the short twentieth century, the time that in Scandinavia itself has been labelled the Age of Social Democracy, the Labour Party State and the Golden Epoch of the Nordic Welfare State.Footnote ¹ This distinctiveness was not so much a matter of different constitutional arrangements, but rather of the ideas, beliefs and values that determined the boundaries of the political discussions, that is, the constitutional imaginary of the Nordic post-war welfare states.Footnote ² The Scandinavian anomaly becomes especially evident when one considers the recent literature on European post-war democracy. To be sure, like elsewhere in Western Europe, the democratic regime that emerged in Scandinavia after WWII was largely anti-ideological, corporatist, bureaucratic, mundane and male,Footnote ³ but it is less easy to see how the Nordic countries fit into post-war narratives of a ‘Christian Democratic moment’ or a ‘centre-right political hegemony’.Footnote ⁴ Above all, it is very hard to force Scandinavia into Jan-Werner Müller’s idea of a ‘constrained democracy’.Footnote ⁵ According to Müller, the lesson from the interwar period, the totalitarian experience and WWII was that popular sovereignty was perilous and that democracy had to be protected from being its own wrong. The solutions included rigid constitutions guarding the rights of the citizens on the one hand, and an international framework of treaties and courts that kept the national government in line on the other hand. Contributing to all of this was also a threat from domestic as well as Soviet communism. As such, it has been argued that post-war constitutionalism and the Western European engagement in human rights emerged primarily with the conservative aim of restricting the power of the national governments or even as a romantic quest for a lost Christian civilisation.Footnote ⁶

The Scandinavian constitutional imaginary of the post-war era was built on very different premises. The prevailing interpretation was that it had been the solid democratic traditions on the one hand and the progressive policies of the Social Democratic governments on the other hand, that had saved the Nordics from totalitarianism. ‘Constraining’ democracy was not on the agenda, as that would endanger rather than protect democracy. It would alienate citizens from the state and make it more difficult for the governments to pursue the progressive policies needed to protect democracy in the first place. In contrast to Müller’s idea of a ‘European post-war democratic settlement’, historians have therefore proposed a ‘Scandinavian post-war democratic settlement’ that could be understood in terms of a special ‘social democratic constitutionalism’ or a ‘popular constitutionalism built on a folkish heritage’.Footnote ⁷

Among the key elements of this constitutional imaginary was the idea that popular sovereignty was firmly in the hands of the national parliaments, while the judiciary was comparatively weak. Indeed, according to the Scandinavian legal realists, who dominated the theoretical discussions on the relation between law and politics in the region, the task of the judiciary was to assist rather than constrain the popular will, to serve as ‘rational technicians’ at the service of the elected politicians.Footnote ⁸ This firm belief in the primacy of politics over law was combined with the ambition to spread democracy across society, building on the traditionally strong position of the local assemblies in Nordic governance, but focusing as well on engaging citizens in a highly active and influential associational life. These so-called people’s movements (folkrörelser) did not form an alternative to the state, but served to connect the citizens to the state in an intricate form of ‘democratic’ corporatism.Footnote ⁹ Adding to this, there was also a strong egalitarian ambition connected to the Nordic concept of democracy, associated with the redistributive social welfare state.

The degree to which this imaginary differed from (continental) European ones is of course debatable but, more often than not, the idea of a distinctive Nordic version of democracy also built upon an explicit or implicit rejection of Europe, its political solutions and historical traditions.Footnote ¹⁰ Nordic democratic distinctiveness was legitimized by embracing national narratives of peasant freedom and Lutheran legacies, which were given much weight and specific and sometimes quite tendentious interpretations during the social democratic age.Footnote ¹¹

This chapter is motivated by the observation that many of these elements of Nordic democratic distinctiveness have been challenged or abandoned during the past decades, but also by the lack of not only empirical studies but also of theoretical tools by which this transformation can be understood in its specific political and transnational context. The notion of a constitutional imaginary can provide one such tool. To be sure, the constitutional imaginary of a society is per definition hegemonic, but it can change as a result of political crises, the establishment of a new constitutional settlement or a shift in political dominance.Footnote ¹²

There is certainly no shortage of literature on the transforming nature of Western democracy. During recent years there has been a virtual boom of books on the ‘crisis of democracy’, its ‘hollowing out’ due to the incapability of the traditional parties to connect with the citizens, the challenge from right-wing populism, or the democratic deficit of the EU.Footnote ¹³ Without diminishing the significance of this literature, this chapter will draw particularly on the bourgeoning literature on neoliberalism. One important reason for this is that neoliberalism in many ways represents an antipode to what the Nordic countries by virtue of their social democratic dominance and extensive welfare states have traditionally been understood as representing. Thus, to the extent that the Nordic democracies have been neoliberalized, it has been a paradigmatic shift in Nordic political culture. Another reason for focusing on the neoliberalism-literature is that it has arguably come the furthest in forging a historical perspective on the transformations of global politics and society at the end of the twentieth century. In a certain respect, this literature has even succeeded in bracketing ‘a neoliberal age’ starting at the end of the Keynesian post-war period and (perhaps) ending with the 2008 financial crisis.Footnote ¹⁴

The literature on neoliberalism and democracy is also quite large and growing rapidly. Thomas Biebricher distinguishes between analyses that point at a restriction of democracy under neoliberalism and accounts that focus on a replacement of democratic procedures with market logics.Footnote ¹⁵ The first category includes studies of how economic policy and the market have become insulated from democratic pressures through, for example, an increased autonomy of central banks,Footnote ¹⁶ commitments to various international treaties protecting trade interestsFootnote ¹⁷ or a juridification of democracy that commits and restricts legislators to pre-existing rules.Footnote ¹⁸ Studies in the second category point at the pervasiveness of neoliberal reason and value systems,Footnote ¹⁹ at the institutionalization of competition at all levels of society,Footnote ²⁰ and at the empowerment of the consumer on behalf of the citizen.Footnote ²¹

While tremendously inspirational, much of this literature is hampered by a rather one-dimensional normative ambition to criticise neoliberalism on the one hand, and by an ill-placed urge to forge rigid definitions of both neoliberalism and democracy on the other. At times, the concepts appear as universal ideas with a stable and unchangeable meaning, as ideal types whose realization in everyday politics always ends up as somewhat incomplete. The approach in this chapter is historical and constructivist. The aim is to deconstruct and operationalize neoliberalism as a historical process – neoliberalization – that has taken different forms in different political contexts. Transnational connections and influences were important but need to be studied as appropriations and adaptions to various local contexts and traditions.Footnote ²² Neoliberal ideas and policies were introduced with different intentions, purposes and challenges in the Nordic region, than in, for example, the Anglo-American world or in Eastern Europe. Moreover, ‘neoliberalism’ and ‘democracy’ are political key concepts – Grundbegriffe in the terminology of Koselleckians – that have been subject to continuous political controversy and struggle that cannot be separated from the history of these phenomena themselves.Footnote ²³ Indeed, studying conceptual change is a way of studying political transformation. As such, the main question in this chapter is not so much how neoliberalism is replacing or restricting democracy, but rather how the term ‘democracy’ itself has been redefined. Such a conceptual perspective is necessary in order to understand why and how neoliberals were able to present their ideas as a call for a democratization of the Nordic societies. It is only by acknowledging the arguments of neoliberal actors themselves that we can understand how and why the transformation of the Nordic constitutional imaginary took place.

All of the above-mentioned perspectives on the tensions between neoliberalism and democracy would merit examination also from a Nordic perspective and the literature is growing rapidly.Footnote ²⁴ This chapter, however, will focus on the key elements of the Scandinavian post-war democratic settlement and, as such, the principal hypothesis is that ‘democracy’ during the past decades has become defined less in terms of participation, interest articulation, negotiation, compromise and equality, and more as a set of fixed rules regulating the rights and freedoms of the individual. The argument is not that this transformation is unique to the Nordic region: similar developments have occurred across Europe and beyond. However, the Nordic countries form a particularly interesting case due to their continuous assertion of democratic exceptionality.

16.2 Redefining the Relationship between Politics and Law

The judicialization of politics – and of the concept of democracy – has become a central topic of discussion both in the Western world in general and in the Nordic region.Footnote ²⁵ The shift from politics to law is related to many processes such as globalization, European integration, as well as an increased attention to minorities and identity politics. Identifying the key actors is a difficult task, but during ‘the long 1990s’, there was, in the Nordic region, a growing confrontation with the idea of Nordic democratic exceptionality. The criticism came mainly from the opponents of the Social Democratic hegemony, but there was a wide sense among intellectuals, historians, political and legal scholars that something was happening with the concept of democracy. At some point, however, the idea of Nordic democratic exceptionality returned in a more juridified and constitutionalized form and was furnished with historical roots as legitimation.

The confrontation took place particularly after the end of the Cold War, when the Nordic model lost its legitimacy as a ‘middle way’ between capitalism and communism. Even more importantly, the accelerating European integration meant that the idea of Norden as ‘the other Europe’ lost currency, provoking a re-evaluation of Nordic democratic traditions. To be sure, there had always been a conservative critique of the Social Democratic hegemony and of the legal realist instrumentalization of lawFootnote ²⁶ but, starting in the 1980s, a number of liberal intellectuals managed to get more attention to their ideas than previously. In Denmark, Henning Fonsmark’s Historien om den danske utopi (The History of the Danish Utopia) challenged the Danish left-wing’s cultural radical monopolization of the concept of democracy, calling for a liberal alternative.Footnote ²⁷ In Norway, the historian Rune Slagstad bracketed the Labour Party state as a particular historical period in Norwegian political history, focusing on its statist ambitions and on its troublesome conception of the relation between law and politics.Footnote ²⁸ In Finland, the Social Democratic hegemony had always been weaker than in the other Nordic countries, but the young IR-scholar Risto E. J. Penttilä made a name for himself as a liberal intellectual by criticising Finnish statist traditions and by his attempt at re-establishing the liberal Young Finns Party.Footnote ²⁹ In Sweden, the reorientation was most closely connected to a criticism of the paternalistic and oppressive features of the welfare state. Professional as well as amateur historians delved into the atrocities committed by the Scandinavian welfare states, such as the forced sterilizations.Footnote ³⁰ Especially active was the market friendly think tank Timbro.Footnote ³¹

Across the Nordic region, the state was increasingly becoming viewed as a threat to the individual. Among legal and political scientists, there was a rising concern about the lack of judicial review, and the weak protection of individual rights in the Nordic countries, arguments that were inspired by and connected to the processes of Europeanization. More often than not, the proposed remedy was to cast doubts about democratic traditions and call for a Europeanization of Nordic law. The Swedish legal scholar Joakim Nergelius called for a stronger role for both domestic and international courts in the political system, welcoming it as a turn towards common liberal principles of a division of powers, whereas the Danish political scientist Marlene Wind criticised Denmark as a democratic anomaly where the parliament has exceptional powers.Footnote ³²

That something was happening to Nordic democracy did not go unnoticed by the contemporaries. In the late 1900s, all three Scandinavian parliaments commissioned large-scale public inquiries into the state of power and democracy in their nations.Footnote ³³ The internationalization of the legal system following the globalization of the economy in general and European integration in particular were central themes, but the degree to which this was seen as a threat to democracy was different in the three investigations. Whereas the Swedish and particularly the Danish investigations were more positive, the Norwegian one was quite concerned that popular rule was ‘cutting its wings’ with the shift of power from the domestic political representatives to the international institutions and their rules.

Now, it is certainly presumptuous to interpret the redescription of democracy as a sign of neoliberalization alone. At the same time, there is no denying that the idea of rigid legal constitutionalism, of justified limitation of parliamentary power, the appeal to inviolable individual rights to bind temporary majorities, are key elements of neoliberal classics like Hayek’s The Constitution of Liberty (1960).Footnote ³⁴ More recently, it has become part and parcel of the critical literature to point at neoliberalism’s preference for the judicial and executive rather than the parliamentary powers or even to propose that law has become ‘the code of capital’.Footnote ³⁵ Constitutionalism is a handy vehicle for forces that want to shield the market from democratic politics. In neoliberal experimental grounds like South America in the 1970s and 1980s or Eastern Europe in the 1990s, ‘rule of law’ became synonymous to a constitutional protection of individual and property rights.Footnote ³⁶ The globalization perspective is also important. As shown by Quinn Slobodian, cementing the rules of the global market in various international treaties and courts, thus protecting them from national legislators, has been part of the neoliberal agenda since the 1930s.Footnote ³⁷ Similarly, Honor Branbazon has argued that market principles and economic freedoms have, during the last decades, developed into Grundnorms of the global order.Footnote ³⁸

In particular, there is something to gain from connecting the Nordic countries to the growing literature on the uneasy relation between neoliberalism and human rights. Most famous is arguably Samuel Moyn’s contention that human rights, in focusing on sufficiency rather than equality, have served as a powerless companion, or even as a Doppelgänger, to neoliberalism.Footnote ³⁹ Jessica Whyte, in turn, has forcefully argued that ‘neoliberals’, including both the key intellectuals (Röpke, Hayek, Friedman) and key institutions (WTO, EU), have used human rights not merely in order to protect the rights and freedoms of individuals but the rules of the market economy as such.Footnote ⁴⁰ From this perspective, social democracy was as totalitarian as communism and (perhaps even more totalitarian than) fascism as it threatened the central values of liberal market economy. From a British perspective, Danny Nicol has even more explicitly made the case that human rights legislation in general and the ECHR in particular serve as a ‘constitutional protection of capitalism’.Footnote ⁴¹ Not only does he follow Whyte in arguing that human rights give neoliberalism a human face, he also suggests that human rights dethrone politics by suggesting that there is a law superior to, and beyond the reach of, politics. In practise, human rights serve as a rhetorical tool to justify the supremacy of international law over national legislation, which, according to Nicol, is at odds with the traditional model of British constitutionalism, which sees the parliament as supremely sovereign.

To be sure, these are uneasy arguments in times of Brexit-nationalism and populist rhetoric of ‘taking back control’ (not to speak of Orban’s calls for an illiberal democracy). At the same time, it is certainly the case that the idea of popular and parliamentary sovereignty as the core of the very concept of democracy has been an important part of British as well as Scandinavian reluctance towards European integration throughout the post–WWII-period.Footnote ⁴² Indeed, the first successful ECHR-case against a Nordic country was the Sporrong-Lönnroth case, which concerned property rights and targeted the ‘illegal’ expropriation of real estate. By conservatives this was celebrated as a victory over the legal realist tradition, which, according to some notable critics, had been in ‘secret marriage’ with Social Democracy throughout the twentieth century, and become acutely dangerous when Olof Palme’s government set out to ‘introduce socialism’ in the 1970s.Footnote ⁴³ At the same time, it would be wrong to interpret the Sporrong-Lönnroth-case parochially as the point in time when the European human rights regime finally arrived in Sweden. The case also figures prominently as a turning point in international literature, for example, in Danny Nicol’s account of how the ECHR has contributed to constitutionalizing neoliberal capitalism across Europe.Footnote ⁴⁴ The juridification of politics relates to the development of global capitalism and cannot be seen as a development peculiar to the Nordic countries, but it is certainly the case that the recent developments clash dramatically with the post-war constitutional imaginary in Scandinavia and with how democracy was conceptualized in the region in the mid-twentieth century.

The human rights perspective is crucial in order to understand how the critics of traditional Nordic democracy during ‘the long 1990s’ thought they were arguing for a democratization of Nordic political culture. For them, the idea of Nordic democratic exceptionality was built on forged premises and perhaps also on a misconception of democratic principles. As such, they called for an adjustment of Nordic political culture to the European mainstream. The human rights-perspective is also important in order to understand how and why the political left co-opted this idea of individual rights as a fundamental aspect of the notion of democracy. Human rights thrived as ‘the last utopia’ and as an attempt to resurrect politics on a moral basis after 1968.Footnote ⁴⁵ Rights-rhetoric was used by the left wing as a criticism of the technocratic and oppressive social democratic welfare state. Individual and human rights became an important part of not only the political rhetoric, but also of the political practise as domestic and international courts became sites where the interests of vulnerable minorities could be defended. Increasingly, and arguably more so in Finland and Norway than in Denmark and Sweden, the left tends to refer to ‘the constitution’ and to ‘individual rights’ in order to further their political aims. One explanation for this is simply that the left has embraced economic liberalism and scaled back on their ambition to replace capitalism with economic planning and public ownership, aiming instead to tame and manage it through legislation. Another explanation might be that the increasing awareness of the cultural heterogeneity of the Nordic societies (and the increasing de facto heterogeneity) calls for a more judicial and rights-based approach to democracy. The progressive and political welfare state was perhaps only possible in the comparatively (or blindly) homogeneous societies of post–WWII and at the cost of somewhat oppressive homogenizing policies. A final hypothesis for the left-wing embrace of a rights-based constitutional language is perhaps that it serves the conservative (!) aim of defending the welfare state in a period when it has been under prolonged relentless neoliberal fire. Indeed, there are significant signs of a corresponding anti-constitutional turn in the political right. In Finland, representatives of both the neoliberal and the populist right have denounced the left-wing opposition, as well as Human Rights lawyers like Martin Scheinin, as ‘constitution-Talibans’ that make political change impossible.Footnote ⁴⁶ Be that as it may, Nordic democracy is no longer, as it was during the 1960s and 1970s, associated with popular sovereignty but rather with a more constitutionalized notion of democracy, based on the notion of a strong protection of individual rights. Individual and human rights have become key parts of what we today consider the Nordic democratic tradition or the Scandinavian constitutional imaginary.

16.3 Transforming the Nordic Corporatism

It is often argued that associational life provides the best perspective for studying Nordic conceptions of democracy.Footnote ⁴⁷ Civil society scholars talk about a special Nordic ‘popular mass movement model’ characterized by high membership figures but by passive membership. The logic was representation rather that participation and, as such, the members trusted the association looked after the interested of its members in negotiation with the state. The aim of the voluntary organizations was never to challenge or overthrow the state but to connect citizens to the state, to channel interests and contribute to the progress of society as a whole. The relationship between the state and the organisations was intimate, to the degree that it was sometimes difficult to discern the boundaries between state and civil society actors.

This Nordic corporatist notion of democracy was also criticised in the 1990s. Critics argued that it was undemocratic that an individual could increase his vote or influence by joining these powerful associations and that the close relationship between the associations and the state was a system that was liable for corruption. Some even claimed that the Nordic statist societies lacked a conception of an independent ‘civil society’, pointing to the fact that, in the Nordic languages, state and society are often used interchangeably – a discussion that either was blind to or aimed at undermining Nordic corporative traditions.Footnote ⁴⁸ There were, of course, many reasons for the re-evaluation of Nordic corporatist traditions and for the transformations that it has undergone during the past decades – globalization, digitalization, social media, and so on. It is, however, also easy to connect this debate to the neoliberalism literature. Scholars like Wendy Brown or Laura Morales have argued that neoliberal rationality compels people to make individual choices like consumers on the market, rather than to promote their interests through collective mobilization.Footnote ⁴⁹ Of particular importance are, of course, the labour market arrangements. Scholars point at a diminished role of labour market associations following from the slow but steady decline in trade union membership, while the employer’s seem to turn their organizations into think tanks and lobbying organizations rather than as parties in a negotiation. Indeed, the traditional tripartite negotiation system, central to Nordic democracy since the 1930s, has in all Nordic countries been questioned and modified towards more decentralized forms of wage bargaining. Scholarship point at flexibilization, deregulation, decollectivization and decentralization as key features of neoliberalization on the labour market and that this has also been the case in the Nordic countries.Footnote ⁵⁰

At the same time, the neoliberalization of Nordic democracy has not led to a more decentralized notion of democracy, but rather to a strengthening of the state on behalf of the associations. The associations are no longer trusted to represent interests and to solve issues among themselves. Their autonomy has decreased. The state can ask them to carry out state functions, for example in the welfare sector but, in that case, they tend to be treated as corporations or social enterprises, not as grass-root movements with a democratic responsibility. When it comes to influencing key decisions on a national level, the associations are today more and more seen as lobby organizations, whose power consists in their direct contacts to leading politicians, not in the fact that they represent a constituency of citizens.Footnote ⁵¹ Democracy is no longer understood to be something that should take place across society, but rather in Schumpeterian terms as an issue for professional political elites.Footnote ⁵²

There are also good reasons to claim that the Scandinavian countries have largely abandoned the third and final feature of the Scandinavian post-war democratic settlement, the idea of democracy being closely associated with economic equality. The literature on the shift from welfare states to competition states is extensive and points at declining redistribute ambitions across the Nordic region.Footnote ⁵³ During the mid-twentieth century, many social democrats nursed the idea that their task was to develop the political democracy they inherited to a social and onwards to an economic democracy. With economic democracy, the idea was that the workers should not only be able to participate in decision-making in the industries but also, through the notorious wage earner funds, to gain ownership of the companies themselves. This idea was vehemently criticised and abandoned during the late 1970s and early 1980s.Footnote ⁵⁴ In many ways, the notion of economic equality has been disassociated from democracy during the past decades.

16.4 Discussion: Nordic Democracy after the End of History?

The aim of this chapter has been to discuss changes in the constitutional imaginary in the Scandinavian countries through a discussion of the notion of democracy. Using neoliberalization as a perspective, the chapter has argued that the democracy championed by the Nordics is no longer primarily connected to national or popular sovereignty, public participation or civil society and labour market arrangements, but rather to rule of law, human rights and political and economic freedom. To be sure, as emphasized above, this is a global development and as such not peculiar to the Nordic countries. Arguably, however, the transformation is of a more profound significance in the Nordic political culture, which traditionally (albeit to different degrees in the different countries) has prioritized popular sovereignty, associational life and equality over individual rights and economic freedom.

Moreover, while the focus here has been on conceptions of democracy within the Nordic states, I think that the general hypothesis also finds support in previous and ongoing scholarship on Nordic foreign relations. Studies on Nordic development aid, for example, suggest that there has been a shift in the way that the governments have understood the criteria of ‘democracy-promotion’.Footnote ⁵⁵ If democracy-promotion during the 1960s and 1970s was understood in terms of supporting national consolidation, popular sovereignty, corporatist structures and economic equality, Nordic development policies and projects have since the 1990s become a matter of requiring that the countries adhere to a pre-defined set of principles of human rights and rules for international trade.

How are we to make sense of this transformation? At a more general level, one could perhaps relate the redefinition of Nordic democracy to Francis Fukuyama’s infamous notion of an End of History.Footnote ⁵⁶ The idea that a particular notion of western liberal democracy in 1989 emerged, not merely as victorious, but also as a kind of pinnacle and end-point of humankind’s ideological development. To borrow from the French intellectual historian François Hartog: we reached the age of presentism where it was no longer possible to imagine a society radically better than the liberal democracies of the western world.Footnote ⁵⁷ Whereas the great ideologies of the modern period (1789–1989) were characterized by the utopian promise of a radically better future, human rights and the more constitutionalized form of democracy served more as a critique of these utopian visions, portraying the future more in terms of threats to the present. At such a point, it became important to cement the principles of the universal good in constitutions in order to protect them from future revisions.Footnote ⁵⁸

It is easy for an intellectual historian to overplay the significance of the ideational. More materialistically inclined historians would probably pursue the transformation of Nordic democracy in terms of an Europeanization of the legal and political frameworks in the Nordic countries since the 1990s, a globalization of the economy that has narrowed down the variety of capitalist systems or the dawn of a country ranking industry that has served to streamline national political horizons.Footnote ⁵⁹ There is, however, something to be said for the contention that the Nordic countries no longer purport to represent a different form of democracy; instead, they have become the countries with the best implementation of the universal principles of liberal democracy, the western post-Cold War doxa that emerged in the wake of the End of History. The Nordic embrace of human rights as a leading principle in domestic politics was part of this transition from Nordic democratic exceptionality as difference (and superiority) to exceptionality as superiority.Footnote ⁶⁰ Indeed, in 2011 Fukuyama himself suggested that ‘getting to Denmark’ was the ultimate aim for countries around the world.Footnote ⁶¹

Paradoxically, at the same time as western conceptualizations of ‘democracy’ were narrowed down to a particular form of liberal democracy, there was also a cultural turn and return of the Sonderweg-narrative in Nordic historical scholarship on the welfare state. If ideas of Nordic peasant freedom and Lutheran legacies in the mid-twentieth century had been used by Social Democrats to fend off totalitarianism and to legitimize social reforms,Footnote ⁶² they were now turned against Social Democracy and operationalized as part of an argument that depoliticized the welfare state and turned the Nordic model into a question of DNA. The cultural turn was operationalized to dismantle ‘the social interpretation of the welfare state’.Footnote ⁶³ The Nordic Way was no longer a result of partisan Social Democratic policies, but the outcome of longer historical trajectories and socio-cultural features inherent in the Nordic societies and, as such, it became possible to neoliberalize the welfare state in the name of the Nordic model.Footnote ⁶⁴

Finally, the normative lesson from associating human rights or constitutionalism with neoliberalism is usually to dethrone law and human rights as the ultimate manifestation of ‘the good’ by pointing at the economic and social inequalities it contributes to or is incapable of fighting.Footnote ⁶⁵ This has also been the purpose of this chapter. But the converse must also be considered: does the association with individual and human rights bring neoliberalism into a more positive light from a historical perspective? The time is probably ripe for intellectual historians to take the prospect seriously. There were undoubtedly some good sides to neoliberalism as well, also and perhaps particularly in the Nordic countries. The political message of individual freedom, the juridification of democracy and the rise of human rights have provided vulnerable minorities and individuals with strong political arguments and sometimes even constitutional guarantees and, thus, neoliberalism has contributed to the downfall of at least some of the abusive paternalism associated with the social democratic welfare state. Studying the transformation of the constitutional imaginary of the Nordic region, we should avoid falling into the trap of a nostaligizing a perfect Nordic democracy that never was.

17.1 Introduction

Approved in the aftermath of the democratic revolution of 1974, the Portuguese Constitution of 1976 (PC) was a solid success, both from political and constitutional points of view. With it, the basic pillars of a solid democratic political regime were established, as well as a broad catalogue of fundamental rights and institutional guarantees that have proved themselves to be essential elements of a new, transformed country. Both the post-revolutionary and pre-constitutional period and the first decades of democratic constitutionalism were marked by the public expression of very different ideologies and worldviews, as well as social, economic and political projects for the country that were deeply distinct. The content of the PC, in its various versions (it was amended seven times between 1982 and 2005), is the result of arduous political negotiations and broad social consensus.

The development of democratic constitutionalism in Portugal in the last (almost) fifty years has been marked by some important debates, which still influence different views and interpretations of the Constitution. I would like to highlight two of them: first, a discussion of the nature and limits of the ‘constitutional project’ enshrined in the CP, the normative strength of the constitution, and the margin of appreciation given to the democratic legislator. Second, the debate about constitutional openness, European integration, and the constitutional consequences of the overwhelmingly desired ‘European path’ of the country, which evolved more recently to be a reflection on the contradictions between such a path and national constitutional characteristics, especially during and after the euro crisis. The objective of this work will be to reflect on the constitutional imaginary of democratic Portugal, in particular on the discrepancies between national constitutional aspirations and European integration, which are particularly acute in what regards the so-called social question (i.e., the social project, including social rights as limits to the legislator, and views of the political economy that are strikingly different at the national and EU levels).

17.2 Constitutional Consensus

To understand Portuguese constitutionalism, one has to know a bit of national history and the idiosyncrasies of the country. The Portuguese Constitution entered into force on 25 April 1976, two exact years after the military coup d’état of 1974, which opened the path for a democratic revolution that brought deep structural transformations, not only at the political and constitutional levels, but also in the economic and social spheres.

Until 1974, and since 1926, Portugal lived under an authoritarian regime. Its concrete features are debated, varying between its classification as a parafascist State and a ‘Portuguese form of fascism’, without a fascist movement; nevertheless, it was certainly a dictatorship with corporatist and fascist characteristics.Footnote ¹ However, a distinct element must be immediately pinpointed, as it is especially important for constitutional history and to understand its specific imaginary: the national dictator, the man who designed the Estado Novo (the ‘New State’) regime and ruled the country as ‘president of the council of ministers’ for decades, was a professor of law. The Portuguese dictatorship was, in many ways, a dictatorship of law professors who were protagonists – and not mere ideologues or side helpers – of the definition and implementation of the regime.Footnote ² The main consequence of this fact is that almost half a century of authoritarianism was anchored on an ‘illusion of legality’, a sort of civilisational patine quite different from typical fascist military dictatorships, with which the authorities tried to disguise or justify the existence of censorship, political police and political prisoners, torture, colonialism, and an overall lack of pluralism and of democratic institutions. The ‘New State’ held a plebiscite to approve a constitution, in 1933, which stayed in force until the democratic revolution, in 1974. It was an interesting and eclectic legal document, with a list of fundamental rights (mainly civil and political rights, whose exercise depended on legal or administrative regulations and should not ‘hurt society or disrespect moral principles’Footnote ³), a strong corporatist trend and a clear illiberal identity.

The similarities and differences between the 1933 constitution and the democratic constitution of 1976 conditioned the early constitutional debates in the recently implanted Portuguese democracy. Both the constitutional imaginary and democratic constitutional settings were characterized at the time by utopian elements (what the democratic regime should aim at), very pragmatic agreements on constitutional design (how the new democratic institutions should work), but also by a clear rejection of the ‘constitutionalism’ of dictatorship (what the new regime should not do, or tolerate in any circumstance).

The approval of the Portuguese Constitution of 1976, following a revolutionary two-year period (1974–1976), was the culmination of a difficult path, which entailed serious political conflict and a long negotiating process. I believe this is one of the reasons why the PC has proved to be quite resilient during the last decades: the fact that it was born out of true conflict and not of fake consensus. The divergences between the participants in the constituent process were clear (and quite considerable) and the final text was a good mixture between different elements and distinct political affiliations and traditions, from the catholic social doctrine and Christian democracy to the more prevailing socialist and social-democratic views. Although the very idea of constitutional consensus was disputed by some,Footnote ⁴ who stated that the 1976 PC was transitory in nature or necessarily contradictory, the dominant opinion today is that the constitution embodied a political compromise, combining the pluralist and representative political democracy, typical of liberal western thinking, with an economic, social and cultural democracy of socialist tradition. Furthermore, the consolidation and the persistence of the PC (that is about to celebrate its forty-eighth anniversary) was accomplished through complex political agreements, which went beyond the time of the constituent assembly and had important manifestations in the constitutional amendments of 1982 and 1989.Footnote ⁵

17.3 Constitutional Debates

The constitution was a key element of the political stabilization of the country, and it allowed Portugal to affirm itself as a consolidated democracy and to begin the path towards European integration. Nevertheless, the initial consensus quickly gave way to fierce debates about certain constitutional questions, which were, in reality, the legal side of broader political divergence.

17.4 Multiple Constitutional Personalities or the Search for Constitutional Identity

The contemporary Portuguese constitutional imaginary faces a crossroads. Although it has overcome the financial crisis’ period without a clear rupture between one or more of its main components, the truth is that it is becoming increasingly difficult to find a compromise. As the European integration process advances in an unbalanced way (or stalls) and new crises arise, one must question the opportunity and usefulness of the constitutional debates that fill the Portuguese imaginary.

Yet, interestingly enough, the contradictions that came about during the financial crisis’ period were neither a crisis of the idea of directive constitution nor of the idea of social transformation through (constitutional) law. Such ideas emerged from that time reinforced, only not at the national level. What became evident during the years of economic disaster was the prevalence of the European political project and its own directive constitutionalism, imposing significative restraints on the legislator and other national bodies, upholding its own balances between fundamental rights and economic organization and promoting its own idea of systemic change and evolution. The paradoxes and contradictions resulting from this phenomenon, from a constitutional point of view, have more to do with the (at least partial) opposition between the national and European constitutional projects than with any other fact.

Therefore, the main problem seems to be the future of the social state, and of the idea of social, economic and cultural democracy, guaranteed through law, whose implementation and promotion is binding upon all State’s powers. In other words: if the EU is intrinsically neoliberal, can we be social-democratic at the national level? Is it possible for our constitutional framework to remain opened but plural and democratic, normatively strong and constitutionally coherent, with a strong commitment towards all fundamental rights enshrined in the national constitution? Is there even a choice, after the Brexit experience? Abandoning the European integration project does not sound like a sensible answer nor would it have the support of the majority of the citizenship. On the other hand, it is doubtful that the same citizenship would endorse the clear and honest assumption of limits to the exercise of sovereignty and free democratic choice in non-harmonized matters or in the sphere of exclusive national competences.

Portuguese constitutionalism needs an honest discussion on what we want to keep, what we are willing to change and what we have already lost. However, that must be done within an environment of political honesty, where those who argue in favour of openness do not do so only because they prefer neoliberalism to social-democracy; and those who sustain the normative strength of the constitution and the use of law as an instrument of social transformation bear in mind that such transformation may or may not be the one that they would defend.

The years ahead, with new and more difficult crises looming on the horizon, promise to make the tension between the written constitution and its imaginary, on one hand, and the real constitution, on the other, much clearer. In other words, the strain between constitutional imagination and the effective application (or lack thereof) of constitutional norms in a context of inter-constitutional and inter-normative dialectic exchanges will probably become more evident.

The main problem seems to be the ability to determine whether this tension is simply the result of the limits of the normative strength of the Constitution, due to social and economic factors, or the manifestation of a new type of limit, not only economic, but also institutional and systemic, in the current EU context. In other words, rather than to a situation of economic and/or political fragility per se, are these tensions due to the resizing and complexification of the constitutional system in the European framework? If so, what methodological approach – if any – may be useful to preserve national constitutional consensus, while still fundamentally respecting the obligations of EU membership? Will the constraints dictated by the economic system be so strong that, in the long-term, and even within the framework of the European Union, they make it impossible to change or alter other elements of the system (social, political, legal and economic)?

Constitutional law is, at the same time, a limit to the exercise of power, and a socio-political project, a repository of the fundamental objectives of a social and political community. If it proves incapable of binding the sovereign bodies to its own hierarchy of values, which should preside over the design of any public norm or policy, and if it allows the deterioration of legal and institutional guarantees of fundamental rights – that is, the pillars of the constitution – very little remains.

Naturally, it will ultimately be up to citizens to decide which dimensions of the original constitutional project they want to rescue, which features are so fundamental that they still identify with them. There is a strong political dimension to the problems described above that is not something to be denied, nor is it to be solved solely through legal means. But the truth is that it is the task of constitutionalism to explain and propose conditions for guaranteeing the greatest possible effectiveness to the constitutional norms in force.

I believe that there are two fundamental methodological premises to achieve this objective. Reconciling them will not always be easy – perhaps not always even possible – but they constitute a starting point for a discussion that deserves to be deepened.

18.1 Introduction

The goal of this chapter is to show the deeper roots of the so-called Polish constitutional or rule of law crisis. The crisis may be characterised as a period of constant conflict between the legislative and executive authorities on the one hand and the judiciary on the other, as well as the increasingly extensive subordination of the judiciary to the former. The structural imbalance within the separation of powers has led to the weakening of the constitutional checks and balances through a series of formal measures (changes in the law, disciplinary proceedings against judges) and informal measures (pressure on judges, chilling effects, etc.).Footnote ¹ Despite the risks associated with the direction of these changes, their political authors have been winning several successive parliamentary and presidential elections, pointing at least to indifference towards changes constituting the constitutional crisis.Footnote ²

In this chapter we argue that, while the constitutional crisis itself started in 2015, processes similar to those happening to the judiciary had started much earlier. The introduction of the rule of law principles in Poland following a period of political transformation in 1989 was a gradual process rather than a result of a distinct constitutional moment.Footnote ³ The 1997 Constitution created highly flexible provisions allowing for multiple types of interpretations of the possible constitutional arrangement but guaranteed the involvement into governance and the policy-making process of social actors such as civil society, trade unions, religious organisations, local and professional self-governments and organisations. In sum, we argue that the 1997 Constitution created ground for the functioning of competitive constitutional imaginaries that fertilised constitutional discourse immediately after its adoption. However, after the adoption of the 1997 Constitution and until 2015, the constitutional provisions were subject to the process which we refer to as constitutional drift, which involved marginalisation of the societal imaginary underpinned by the Constitution. During this period, more dominant liberal and communitarian imaginaries created grounds for a new paradigm of governance which strengthened the executive at the expense of the parliament, social partners and other social actors in general. This period includes Poland’s integration to the European Union, with the formal accession on 1 May 2004 and the gradual Europeanisation of the Polish legal order. In this period, processes fundamental for the emergence of the current constitutional crisis, which began in 2015, were started. Our perspective aims to provide deeper, institutional perspective on how and why the constitutional crisis was possible – related to the adverse direction which Polish constitutionalism took after the adoption of the 1997 Constitution.

This makes us question the existing literature, which suggests a few possible explanations for the constitutional crisis.Footnote ⁴ First, some scholars see it as being caused by the actions of populist politicians aiming to dismantle the limits of power,Footnote ⁵ attacking the liberal principles of the system and the institutions that embody these principles while seeking broad popular supportFootnote ⁶ through social transfers and the accompanying anti-elitist and anti-pluralist rhetoric aimed at excluding various minorities.Footnote ⁷ The second and similar group of explanations are cultural, which point to the lack of alignment between formal constitutional provisions and cultural conditions.Footnote ⁸ This led to a disenchantment of citizens with the Constitution, related to the lack of identification with liberal values and preference towards different model of community – a more ethnic one, often built on a sense of insecurity. Finally, antagonistic explanations claim that constitutional provisions were attacked because of its ‘capture’ by lawyersFootnote ⁹ or because, while they appeared neutral, they effectively secured neoliberal economic principles and interests of the narrow elite.Footnote ¹⁰

Although these interpretations often start from the right premises, they do not capture the phenomena in question entirely and lead to erroneous generalisations. In our view, the approaches focusing on populism do not place it in the context of the existing constitutional practice. In particular, they fail to consider how the constitutional practices prior to 2015 reflected the existing constitutional model, while some scholars argue that the adherence to constitutional provisions was rather poor even before the crisis.Footnote ¹¹ Focusing on populism can mostly demonstrate the rather obvious fact of its existence and describe the havoc it wreaks in the constitutional sphere but cannot show either its historical genesis or explain how such a vast constitutional space was created for its development.

Rejecting the thesis of purely populist sources of the crisis – without, however, denying the responsibility of the populists themselves and rejecting the thesis of the inability to overcome the errors of the transformation – we propose another way. It consists in noticing and highlighting the period of constitutional drift for shaping the constitutional practice. A series of processes took place in 1997–2015 that led to the rejection of an imaginary allowing interpretation of the Polish Constitution in the spirit of societal constitutionalism (which we call the ‘societal imaginary’). At the same time, a new paradigm of governance favourable to the concentration of power was taking shape underpinned by different imaginaries. Noteworthy among these processes was the development of the ideology of strengthening the executive (i.e., the Prime Minister and the cabinet) at the expense of social actors and entrusting the former with the task of bringing about significant social changes, the technocratic Europeanisation of the legal order and the increasingly broader practical understanding of the Constitution as a carrier of values rather than a vehicle of social ontology.

The structure of the chapter will not be chronological. First, we will set the outset by discussing potential ways of interpreting the Polish 1997 Constitution in the context of competitive imaginaries which are present in it. Then, we will discuss the constitutional drift, that is, the institutional practice that contradicted the societal imaginary and led to a significant divergence with the potential of the functioning of a corporatist social model, showing how the executive strengthened itself at the cost of social partners, NGOs and professional self-government organisations citing democratic accountability and the necessity to integrate with the European Union. In Section 18.4, we discuss the transition from the constitutional drift to the constitutional crisis.

18.2 Forming of Polish Constitutional Model and Competitive Imaginaries of the Polish Constitution

The debates over the enactment of the new constitution between 1989 and 1997 emphasised the need to avoid strongly political and ideological components and focus on its legal role. The 1997 Constitution was, therefore, a deliberate attempt to create a text which is juridical, focused on justiciable formal arrangements, the norms defining competences and rights. It was foreseen that the inclusion of various declarations on values could be a source of difficulties in the future constitutional practiceFootnote ¹² and would risk turning the text into a manifesto.Footnote ¹³

Consequently, the systematic interpretation of the provisions of the Polish 1997 Constitution has been and still is a practical and theoretical challenge as it contains references to different sets of ideas and beliefs.Footnote ¹⁴ One can speak of a constant task to search for such a theoretical formula which, on the one hand, will not limit itself to stating that there are various conflicts of constitutional values which require balancing on the grounds of concrete cases and, on the other hand, will not reduce this task to the necessity to undertake unifying measures with regard to these values, achievable only at the cost of marginalising certain contents contained in the act in question. Such systematic interpretations can be understood as different as competitive constitutional imaginaries which function in the Polish constitutional discourse as alternative ‘readings’ of the constitution.Footnote ¹⁵ Such imaginaries refer to the fundamental principles or ideas contained in the given constitution, which explain their meaning in the context of a specific political philosophy or social theory. The role of an imaginary is to propose an understanding of the basic notions of a given constitution convergent with a given political philosophy or social theory while granting legitimacy to the particular rulemaking and governance processes on the grounds of that philosophy or theory. In other words, imaginaries help to ‘motivate and justify the practice of the government and collective self-rule’Footnote ¹⁶ underpinning this process by references to coherent sets of ideas and beliefs. Practically speaking, imaginaries allow us to structure constitutional norms and their mutual relations and solve legal and political problems associated with complexities and paradoxes of democratic governance.

The discussions about the nature of the Polish 1997 Constitution have been predominantly conducted between most dominant liberal and communitarian constitutional imaginaries. Liberal imaginary assumed that the function of constitutional architecture is to limit power to protect individual rights and freedom understood negatively. This way of reading the constitution in principle understands every form of interference, including legal interference, as a limitation of individual freedom. On the other side lies the principle of the sovereignty of the people, associated with democracy, by dint of which citizens can express their political will through law that can, among other things, limit individual freedom. Freedom and the sovereignty are thus described as being in conflict and are additionally counterbalanced by antagonistic principles, such as the rule of law, the separation of powers, the independence of the judiciary or constitutional review. The status of constitutional norms as conflicting principles which need to be balanced allows for synergistic effects – a kind of optimum between individual freedom and the sovereignty of the people. This perspective of looking at the constitution was particularly present in the Constitutional Tribunal’s case law.Footnote ¹⁷

Alternative imaginary contributing to the discussions about the nature of the Polish constitutional project was a communitarian (republican) one that understood constitutional values such as freedom in a positive way, that is, as increasing capability of action/choice.Footnote ¹⁸ This capability is determined not only by the restrictions set by political power but also by the operations of political power which may actually increase these capabilities. The sovereignty of the people as well as the rule of law and other principles such as the separation of powers serve this purpose. All of them are to be interpreted as reducing the arbitrariness of governments and preventing a group from gaining unlimited power. Because of the teleological subordination of these principles, there is no antagonism between the principle of freedom and the sovereignty of the people and both principles can be fully realised – not one at the expense of the other, as in the liberal view.Footnote ¹⁹

While we do not question that both liberal and communitarian imaginaries provide a coherent and possible interpretation of the 1997 Constitution, we believe that they have effectively contributed to the constitutional drift that we will discuss in Section 18.3. We will concentrate on highlighting the differences between our proposal of the societal reading of the constitution built upon the principles of societal constitutionalism rather than on the liberal and communitarian imaginaries. As a result, we suggest that ‘societal’ imaginary based upon societal constitutionalism is underpinned by the 1997 Constitution, played a role in the Polish constitutional discourse after 1997, and should be revitalised as a means of overcoming the constitutional crisis.

Societal constitutionalism, while not negating the status of freedom as a constitutional value, focuses on the safeguards of social diversity, the autonomy of existing social actors and the normative orders they produce, against the drift towards social authoritarianism and its transformation into political authoritarianism.Footnote ²⁰

The societal interpretation of the Polish Constitution that we put forward assumes that, on the grounds of liberal or communitarian imaginaries, the autonomy of social actors is too narrowly understood as threatening political expression. Societal constitutionalism highlights, however, that, in any social subsystem, individuals can be subject to dependencies limiting their freedom, whether it’s the system of economy, health, the media or science. In any social subsystem, individuals can be coerced into theoretically voluntarily giving up their freedom and submitting to more or less formal social control measures. Notably, the mere safeguarding of political freedom with the increasing restriction of the individual’s possibilities for social development will sooner or laterFootnote ²¹ – due to the expansionism of social subsystems – lead to a restriction of the former.

We may recognise that the tension between individual rights and the people’s sovereignty is a structural antagonism, as in the liberal imaginary. Also, we may see the possibility of resolving the conflict between the two, as in the communitarian imaginary. But there is a third element to this relationship, which transforms it into a triangle, and this element is a society and various forms of its self-organisation. Only in this way is it possible to constitutionally secure autonomy. Without securing autonomy of the society, only the following two scenarios are possible. First, political power’s increasing influence on social life results in increased politicisation, bureaucratisation of society and communication overload.Footnote ²² Second, the extension of individual rights into social relations (e.g. as part of their horizontal effect) increases the juridification of social life.Footnote ²³ The attempt to secure social freedom by means familiar to traditional juridical or democratic constitutionalism and the subsystems linked within it must therefore aim at an expansion of either politics or law – and thus ultimately at a reduction of social differentiation due to the loss of autonomy.

Of course, the inclusion of societal autonomy in the relationship in question must find a basis in the constitutional text. Such a basis exists in the Polish 1997 Constitution, which mentions many institutionalised social actors and forms of self-government. The different interpretations of the Constitution differ in their visions of how these entities are to fulfil their roles.

Within the liberal imaginary, civil society is first and foremost supposed to control the political power, thereby contributing to its limitation. At the same time, the role of politics is supposed to secure a legal framework protecting individual rights. The political power and the civil society are thus mutually balanced. Such an approach pre-supposes competition between social actors and state bodies. By necessity, it must drive strategic action, bureaucratisation, and social control. Thus, if it even contributes to securing political freedom, it sacrifices the autonomy of social entities. Within the communitarian imaginary, the people’s sovereignty, individual rights, and social actors all interact to maximise the same value of positive freedom. Politics is tasked with unifying social subsystems with a common goal. This reading ignores the societal fragmentation into different subsystems such as economics, health and science, that act in the name of different and sometimes conflicting values.

Within the societal imaginary, the political and legal systems must be open to socially produced normativity. Instead of leaving these processes and their effects in the private sphere, the Constitution should consider them in a genuinely democratic process of law-making. This can take various forms but, in essence, social actors should be able to influence public policies and law-making, create their own norms and self-regulate as broadly as possible.

The proposition of a societal imaginary is ultimately linked to a classic corporate social model characteristic for continental Europe, opposed primarily to the American pluralist one and focused on resolving social conflicts – mainly in the economic sphere, but not exclusively – through negotiations and compromises between social partners.Footnote ²⁴ The premises for the functioning of a corporate social model are: (1) self-organisation of the society in various forms (from civil society organisations, through trade unions and employers’ organisations to professional and territorial self-government), (2) consensual agreement-making modes (from informal dialogue mechanisms through bipartite and tripartite social dialogue to the co-governance by social partners) and (3) mechanisms of inclusion of social norms formed bottom-up (from effective forms of consultation and opinion-forming, through social participation in the creation of public policies, to self-regulatory regimes).

The societal imaginary of the Polish 1997 Constitution is underpinned legally, politically and historically by four arguments.

The first argument concerns the material scope of the Constitution. The Constitution provides regulations in several areas which do not need to (as rights and freedoms of citizens and to structure the operations of public administration) – but can – be regulated at the constitutional level.Footnote ²⁵ Such ‘possible but not necessary’ norms provided in the Constitution protect and regulate various forms of self-organising such as: (1) self-government (local and professional), (2) civil society (foundations, association etc.), (3) social partnership (trade unions and employers’ organisations) and (4) religious entities (churches and religious associations).

The second argument underpinning societal imaginary relates to the position of social actors in the act who are mentioned in the very first chapter which sets down rules for the functioning of the socio-political system. It is assumed that their inclusion in the first chapter implies a duty to ensure autonomy of their operations and that the constitutional regulation of social actors is declaratory rather than constitutive in nature, and that, as a rule, civil society subjects exist prior to their establishment in a legal sense.Footnote ²⁶ The duties of the public authorities should here be understood not only as related to guaranteeing the freedom of association but also ‘to increase and diversify the possibilities of their activity, opening the way for the growth of these possibilities’.Footnote ²⁷ Thus, the point is to create pro-developmental conditions both in the sense of increasing the pluralism of social actors and their opportunities for action. The latter should also include increasing their influence on public policies. It is because civil society is a political actor and citizens become political agents also through institutions that self-organise and produce their own social orders.

The third argument under-pinning societal imaginary concerns the historical formation of the regulation of social actors and the constitutional identity. In the Polish constitutionalism, the autonomy of civil society is understood in a Hegelian tradition as being in opposition to the State, which heavily influenced the Polish constitutional discourse in the 1980s and 1990s.Footnote ²⁸

The fourth and final argument underpinning societal imaginary refers to the historical process of drafting of the Constitution where principles linked to societal constitutionalism were explicitly included due to pressures from civil society.Footnote ²⁹

The above argumentation indicates that the Constitution aimed at the institutionalisation of the social model and that the societal imaginary provides a coherent alternative to the liberal and communitarian one based on the constitutional text. In our view, it was only in the subsequent period that the range of potential interpretations was significantly narrowed down, whereas the corporatist-like social model was gradually excluded from the constitutional practice, the power was consolidated in the hands of the executive and a space for populism was created.

18.3 Constitutional Drift

We argue that the constitutional order has been subject to a phenomenon that could be described as constitutional drift which we understand as a process of marginalisation of the societal imaginary by the developments underpinned by liberal and communitarian imaginaries. Here, we refer to Sciulli’s concept of drift resulting from the increase of competition among social actors in the context of rising societal differentiation.Footnote ³⁰ Social actors, operating in different societal subsystems and unable to influence them to the extent that they would have envisaged, increasingly adopt strategic, bureaucratised methods of operation to increase the efficiency of their actions. These actions result in the rise of social authoritarianism – in our case, located in the political system – relying on various forms of social control which are not counteracted. Moreover, Sciulli points to the fact that instruments traditionally designed to prevent the rise of social authoritarianism further exacerbate the problem. For instance, replacing market forces with administrative governance creates a de facto parallel market utilising bureaucratic instead of market logic. A second example are social movements that naively aim at liberation from pervasive social control, which are very often so unstructured and spontaneous that they are vulnerable to various forms of strategic action by other players.

These conceptualisations are a good starting point for the analysis of the drift that took place after the adoption of the Polish 1997 Constitution. We track constitutional drift in three areas – social dialogue (relationships with trade unions and employers’ organisations), civil society (relationships with NGOs) and professional self-government organisations (relationship with associations of professions of public trust). The cooperation between social actors (i.e., trade unions and employers’ organisations, NGOs, and professional self-government organisations) and policy-makers (including the executive and political parties) in the area of law- and policy-making has been tightening in the early years after 1989. However, due to overlooking of the possibilities stemming from societal interpretation of the Constitution, the relationships between the executive and society developed in a way contributing and accelerating the drift. While various policy actions, including reforms to the social dialogue explained in Section 18.3.1, have been undertaken to stop the process, the requirements of social coordination resulted in subordination of social actors to the bureaucratic expectations of the political power. On the level of constitutional discourse this was fuelled by the liberal and communitarian interpretations of the Constitution, aiming to construct a maximally functional architecture of public administration and the government, while voices from self-organising society were treated as undermining public interest.

A new political paradigm emerged transforming the practice of the constitutional framework. In this paradigm, interferences in the activities of social actors were justified with liberal (protection of individual rights, free market, etc.) or communitarian arguments (protection of the common good). Social actors were publicly accused of particularism. Consequently, the policies against their influence on public policies and law-making were carried out, which we describe in Sections 18.3.1–18.3.4. Ironically, these political developments accelerated and boosted particularistic orientation among social actors and contributed to the growing disenchantment with the institutional framework, which further accelerated the drift.

18.4 Conclusion: From Constitutional Drift to Constitutional Crisis

Marginalising societal imaginary widened the gap between the policy-makers, politicians and social actors. By interfering in their functioning, the policies towards social actors in 1997–2015 created grounds for the power creep and, eventually, the constitutional crisis. Common explanations claiming that the absence of an active resistance against this crisis from the civil society results from its disinterest in civil involvement are inaccurate. Social actors have become passive or rather channelled their activity through informal avenues as a result of many years of hostile public policies, constitutionally empowered by liberal or communitarian imaginaries. These actors had no choice but to develop various alternative and informal strategies to participate in the policy-making.

In this sense, the events that are described as Polish ‘constitutional’ or ‘rule of law crisis’, which come down to the limitation of judicial independence, do not come as a surprise. The same processes had already been occurring vis-à-vis trade unions and employers’ organisations, NGOs and professional self-government organisations. The same narrative is currently employed by the executive against the judges, while the same liberal and communitarian arguments allegedly protecting the freedom of individuals or the public interest are now repeated and again contrasted with ‘particularistic’ rent-seeking by judges accused of attempting to build ‘juristocracy’.Footnote ⁵⁸

The authoritarian tendencies also continue in the fields which we invoked to illustrate the constitutional drift. During the constitutional crisis, the social dialogue has been unprecedently politicised and marginalised.Footnote ⁵⁹ The NGOs found themselves under even more pressure, with the Law and Justice cabinet centralising and taking control over their funding, making a distinction between ‘genuine’ and ‘insincere’ civil society.Footnote ⁶⁰ Finally, professional self-government organisations have been further marginalised and brought under political scrutiny.Footnote ⁶¹ This marks an effective ‘loss’ of the societal imaginary that does not find its effective defenders who abandoned previous attempts to build a corporatist social model and subordinated to the principles of liberal and communitarian imaginaries.

All these processes should be seen as a continuation of the 1997–2015 trends. They do not bring a substantial qualitative change but rather an acceleration. Moreover, they were rather propelled by formal liberal and communitarian constitutional imaginaries, whereas these interpretations are now presented as means to overcome the crisis.

Our understanding suggests a different route. The constitutional crisis should be seen as enabled precisely by the liberal and communitarian imaginaries against the societal imaginary that would underpin protection of the social model. Marginalising societal imaginary unleashed the possibility of power struggles contributing to the constitutional drift and the crisis in the relationships between the political power and society. Resolving such tension should thus involve revitalising societal imaginary where social actors might find a transparent and effective way of participating in public policy-making. Such a way of interpreting the 1997 Constitution would also promise a more solidaristic form of European integration that would actually involve the society in co-governance structure and not simply use transposition requirements to increase the power of the executive and/or spread distrust against the European institutions.

19.1 Introduction

It is somewhat paradoxical nowadays to reflect on collective imaginaries at a time of individualism, post-nationalism and transnational governance. It is even more paradoxical to reflect on such imaginaries with a national key. Examining national imaginaries indeed entails looking at idiosyncrasies, that is those specific, unique, unparalleled features of a given national community that distinguish the latter from other national communities.

Such a type of idiosyncrasies, which often happen to be based on emotions, may understandably be perceived with suspicion in the context of European integration as both a unity-driven and reason-based political endeavour. They are the result of collective imaginaries that prominent scholars have called ‘imagined communities’, ‘imagined structures of belief’ or ‘invented traditions’.Footnote ¹ Where current times primarily value the present and, to some extent, the future, those imaginaries overlap with mental representations inherited from a certain mythical past that has often more to do with collective memory than scientific historicity.

Based on a supposedly pre-existing and mysterious ‘We, the People’, they create a sense of kinship, a feeling of national exceptionalism and a reason for pride for those sharing them that may ultimately turn into sheer nationalism and oppose political communities against one another. With their inherent dreamlike component, imaginaries bear a degree of irrationality and can therefore fuel potentially fateful passions when those passions are turned into political claims and ground nationalistic aspirations or populist claims.

Researching on national collective imaginaries is thus arguably quite politically incorrect in a post-national Europe as it seems to be bound to be premised on an introspective and backward-looking interest into kinship, group psychology and self-perception and may foster divisive political claims leading to Europe’s fragmentation. Now, however, can such research be redeemed if it mainly looks into collective imaginaries from a constitutional viewpoint? Is it that constitutional imaginaries mitigate the risks associated with collective imaginaries and render them more acceptable? Can they do so without undermining the virtues of collective imaginaries? All those questions require us to determine what a ‘constitutional’ imaginary is, what makes a collective imaginary constitutional and what that concretely entails.

There is an apparent tension within a simultaneously constitutional and collective imaginary. Its imaginary pole is potentially closed and gregarious and thus dangerous, while its constitutional one would appear open, more universal and individual-based. It is indeed often assumed in Europe – and more broadly in the Western world – that constitutionalism refers to universal, individual-based values (often under the banner of ‘liberal constitutionalism’ or ‘liberal democracy’) as opposed to community values defined along national lines.

The distinctive imaginary that France has forged over the centuries makes it a unique case-study to understand both the construction of national constitutional imaginaries in Europe together with the challenges that EU integration, with its own concepts, narratives and values, represent for those imaginaries. The self-perceived exceptionalism is indeed not confined to the United States. The French imaginary has generated its own political and social model. That feeling of uniqueness inherited from the French Revolution appears entrenched in the ‘Great Nation’. Not only has it induced the widespread belief that France has something to say to the world but it also largely explains France’s past as a colonial power yearning to share its model with other peoples as part of the ‘civilising mission’ of European states, often referred to in the English language as the ‘white man’s burden’.

The French constitutional imaginary is therefore worth examining as a domestic product but also as an export product that travelled, together with the political model underpinning it, to French ex-colonies but also to those former communist states in Europe where the French revolutionary ideals have inspired the Russian Revolution and thus shaped the own imaginary of those states. What is that imaginary? Has it changed over time and how? It is submitted in this chapter that the French ‘constitutional’ imaginary is the result of an enduring competition between two lines of political thoughts that rest on different concepts of liberty (positive and negative):Footnote ² on the one hand, the dominant Republican thought as understood especially by Rousseau, and, on the other hand, the liberal thought as understood especially by Locke and which, albeit not foreign to the French political tradition, was somewhat less significant during the Westphalian times.

(National) constitutional imaginaries are similar to tectonic plates. While they have a smooth co-existence when they stay apart, the disruption may be immense where certain factors lead them to collide. That is arguably the case on the fertile ground offered by European integration as the most successful regional experiment of globalisation that thrives on neoliberalism, the rule of law, fundamental rights and more broadly liberal constitutionalism as the contemporary dominant type of liberalism in Europe. It would appear that the deep divide within French society nowadays is – at least partly – the result of a struggle, within the French imaginary, between the Republican thought and the liberal one, whereby the grand old French Republican pillars are shaken by Anglo-American narratives vehicled by European Union law (hereinafter ‘EU law’) together with the system established by the European Convention on Human Rights (hereinafter ‘the ECHR’) and its individualistic tide.

Against that background, this chapter explores the evolution of the French constitutional imaginary in the mirror-inverted light of the liberal imaginary inherited from Locke in particular. It is on the basis of the findings in Section 19.2 regarding the available tools to determine the past and current content of the constitutional imaginary of a given community that Section 19.3 teases out, in contrast with the Anglo-American tradition premised on negative liberty, how the Republican conception of positive liberty has had a hegemonic role in France through Rousseau’s influence in particular. That latter section looks at how Republicanism found its concrete expression in France in the nature of public power, the concept of the separation of powers, the relationship between state and society and also property. It also examines the embedded character of the Republican tradition by showing how difficult it has been for French liberal authors to impose themselves within the intellectual history of France and the influence that Republican ideas have had on their own views. Section 19.4 subsequently addresses the liberal shift prompted by globalisation and European integration from the 1970s onwards and how it altered public law. It shows how the French long-standing Republican tradition, deeply engrained within the collective psyche, is being eroded by the Anglo-American political culture conveyed by the European Union and more generally by globalisation and the correlative rise of individualism and human rights. Section 19.5 looks at various political moments that bring to light the resistance of the French Republican tradition towards (neo)liberal tremors. The conclusion in Section 19.6 recaps the main findings.

19.2 How Can We Know about Constitutional Imaginaries?

Delineating the content of any constitutional imaginary requires in the first place to understand what a constitutional imaginary is, what function it fulfils within a society and how it relates to power and the law.Footnote ³ Addressing those issues then makes it possible to come up with appropriate heuristic tools that allow us to grasp the content of specific imaginaries.

19.3 The French Constitutional Imaginary as a Republican Imaginary

19.4 The Liberal Turn in French Constitutional Law

French intellectual history thus appears out of tune with the specific developments that France has gone through since the 1970s. While the ‘liberal turn’ of the 1970s within political thought is ambiguous in its meaning and motivations, it remains that the French Republican imaginary has been specifically shaken up from the 1970s by major political and legal transformations largely induced by (Anglo-American) liberal tremors under the influence of external factors such as globalisation, the belonging to the EU and the ECHR system, the rise of rule of law considerations together with judicial protection of individual rights and the correlative distrust towards a transcendental approach to the general interest and what can be done in its name. Although those factors have not provoked a shift in the political thought (yet have triggered resistance and discussion among political philosophers), they have pushed or at least supported significant changes in the theory and practice of French law, especially public law.Footnote ³⁸ That liberal turn in the law has materialised in at least two ways: first, those various factors have put to the test several key concepts that have been at the crossroads between French constitutional law and Republican political thought; second, they have fostered the Anglo-American, negative version of liberalism, economically through neoliberalism and politically through liberal constitutionalism.

First, the demise (or at least transformation) of the traditional concepts of constitutional law can be witnessed. As explained by French professor of constitutional law Baranger, ‘the key concepts of constitutional law are leaving the stage. That withdrawal takes the form of a gradual loss of meaning. The words are still used but one does no longer know what they mean’.Footnote ³⁹ For instance, while the figure of the (abstract) citizen was central in the Republican ethos and notably found its specific legal expression in the case-law on equality, the concept of citizenship is often used nowadays as a mere vague adjective. Where it is used as a noun, like in EU law, it refers to citizens who enjoy substantive rights within a conception of freedom as individual emancipation, not as civic participation in the general interest of society. A similar transformation has affected the concept of constitution. That concept is increasingly replaced by that of constitutionalism understood as liberal or negative constitutionalism. Nowadays, constitutions are increasingly seen, including in France, as an instrument to limit public power, not mainly an instrument to devise the best and most suitable political regime. That explains the more and more frequent paradox whereby a constitution can be deemed unconstitutional.

By the same token, the concept of sovereignty, which has been salient in France since the emergence of the modern state, no longer appears intelligible or useful to understand state power while it used to be a defining element of the latter. The traditional meaning of sovereignty is at odds with liberal constitutionalism. Even when bestowed upon the people and not the king, it still refers to the idea of an absolute, unitary and indivisible power that is intrinsically incompatible with the idea of limitation of power underpinning liberal constitutionalism. Moreover, its meaning has become diluted because of the variety of its uses. Sometimes, (state) sovereignty is said to be pooled or shared (but is it still ‘sovereignty’ once the classic concept has been stripped of its constitutive element?). Sometimes, sovereignty is just discarded for its being no longer a fully operative concept to describe those nation states that have now become member states. It is then replaced by another discourse, that of ‘constitutional identity’, which appears to be a pale substitute of a bygone sovereignty. Sometimes again, if no longer used in relation to the states, the word sovereignty is simply used in relation to the European Union to suggest some kind of strategic autonomy vis-à-vis other regions of the world.

Second, the major transformation of constitutional law that has been prompted by the liberal turn from the 1970s onwards is the result of the constant rise of fundamental rights protection and rule of law considerations. In France, there used to be no review of legislation with regard to individual rights. Three reasons may explain that legal vacuum: the primary role initially assigned to the French constitutional court by the Constitution of 1958 currently in force was to enforce the separation of powers, not fundamental rights; the Constitution did not enumerate fundamental rights nor contained a bill of rights; parliamentary sovereignty (the so-called légicentrisme, that is the intangible character of acts adopted by parliament) together with distrust towards courts have been material to the Republican tradition and have long precluded judicial review of legislation. It is in 1971 that liberal constitutionalism started to pervade French constitutional law in a seminal judgment of the Conseil constitutionnel (the French Marbury v Madison so to speak) whereby the constitutional court has for the first time struck down a parliamentary bill for a breach of a fundamental right (or rather ‘public liberty’ in French parlance), namely freedom of association. Despite that major change, the Conseil constitutionnel was still not entitled to review parliamentary acts after their enactment. Once in force, parliamentary acts could not be challenged on constitutionality grounds. It is only four decades later, from 2010, that France revised its constitution and provided for a constitutional adjudication procedure allowing the Conseil constitutionnel to carry out ex post review of acts of parliament (the now famous ‘QPC’, standing for question prioritaire de constitutionnalité).Footnote ⁴⁰

However, the rise of liberal constitutionalism in the 1970s and 1980s is primarily the result of external factors, namely EU integration and the ECHR. French ordinary courts have indeed gradually accepted to enforce international and above all European treaties and acts adopted on the basis of the latter against French acts of parliament.Footnote ⁴¹ Such Copernican revolution prompted from outside France significantly undermined the French Republican imaginary in at least two ways: first, that transformation empowered non-democratically-elected courts to the expense of democratically-elected institutions, Parliament in the first place; second, such transformation did not only entail that nation-states were not the only source of law and power but that legal norms created outside the state could prevail over state law. Accordingly, ever since the 1970s, the Republican imaginary has been constantly undermined through a phenomenon of legal acculturation to liberal constitutionalism.

19.5 Epiphanies of the Republican Tradition in Reaction to Anglo-American Liberalism

Should it be needed to further demonstrate the fact that the French imaginary is being insidiously shaken up by the rise of Anglo-American liberalism, it suffices to look at those political acts of resistance or contestation that highlight the tensions within French society itself, between the entrenched Republican tradition and the pervasiveness of Anglo-American liberalism. As previously explained, epiphanies are those moments full of dramatic intensity where various competing strands of thought, in casu the Republican tradition and the liberal thought, frontally clash, thereby confirming the core Republican content of the French constitutional imaginary. Three epiphanies are well illustrative of the tectonic tension between the French and Anglo-American traditions diffused by European integration and globalisation: the referendum on the Maastricht Treaty in 1992, the referendum on the European Constitution in 2005 and the Yellow Vests movement. First, the referendum on the ratification of the Maastricht Treaty in 1992, which was narrowly won by the ‘Yes’ side, shed light on a split within French society between what French philosopher Régis Debray called the ‘nationaux-républicains’ and the ‘libéraux-libertaires’.Footnote ⁴² That terminology is revealing in itself since it opposes, on the one hand, the Republican thought, which is attached to the nation-states and to the concepts of Republicanism and, on the other hand, the liberal thought that focuses on individual freedoms. Second, the referendum on the ratification of the European Constitution in 2005 opposed the two same groups. However, another divide along economic lines also appeared within French society between those in favour of a ‘social Europe’ and those in favour of a ‘neoliberal Europe’. Although that second divide did not correspond to the earlier one but cut across it, it suggests that there is also another type of opposition prompted by EU integration, this time between neo-liberals and those that adhere to the solidarity component of the Republican ideal. Finally, although the Yellow Vests movement in 2018/2019 was not directly born from a public discussion on Europe, it largely overlapped with the pro-Maastricht and the anti-Maastricht divide, between those that make gains out of globalisation and those do not.

Interestingly, those moments have always concerned debates closely or remotely relating to Europe. That is not surprising inasmuch as the latter tests the very Republican concepts and political thought.Footnote ⁴³ EU integration as a regional embodiment and experiment of globalisation has carried with it values different from those characteristic of the Republican thought. Not only does the EU’s existence suggest that there can be legitimate law – and even constitutionalism – beyond nation-states, the EU itself was founded on neoliberal premises that praise the market and competition and limit state interferences in the economy. The EU has gradually also embarked on the liberal constitutionalism ship to such an extent that the Court of Justice has recently taken the view that the protection of individual rights and the rule of law are part and parcel of no less than the EU’s own constitutional identity.Footnote ⁴⁴ In all three events, the lurking Republican tradition thus abruptly erupted to the surface in the context of liberal perceived threats for its integrity. Although it is hard to know whether all three epiphanies show a persistently strong, albeit rather unconscious, adherence of the French people to the Republican thought as a whole or merely to certain of its dimensions (such as solidarity), they all highlight a rejection of Anglo-American liberalism by a significant portion of the population.

19.6 Conclusion

In order to unearth the content of the French constitutional imaginary, I have started with providing a method to that effect. I have proposed to examine the grand narratives and key concepts as they notably derive from French intellectual history and constitutional law. I have also suggested to look at epiphanies, that is salient political events in times of crisis, for a confirmation of the content of constitutional imaginaries, where tectonic tensions between opposing ideologies come to the fore within public discussion. Relying on that method, this chapter showed how republicanism differs from liberalism, primarily on account of the importance assigned to political liberty and to constitutions as instruments that allow to realise that type of liberty through the search of the ideal political regime. Rousseau’s Republican thought permeates French constitutional law. It is what explains the latter’s key concepts, the adherence to the political approach to constitutions and the French passion for constitutions to fulfil political liberty. Political liberty, the underlying vision of society and the role of political institutions in shaping society have indeed been the red thread that has been running through French political thought and legal practice for decades. The Republican imaginary appears so strong that a great deal of French authors who are usually portrayed as liberals, Montesquieu included, have in fact endorsed a conception of liberalism that differs from Anglo-American authors by combining political liberty and civil liberties.

The rise of Anglo-American liberalism in the Western world from the 1970s onwards has, however, created fertile ground for a destabilisation of the French Republican tradition. The latter is being shaken up by the vehicles of negative liberty, such as the European Union and the system established by the European Convention on Human Rights, which have promoted individualism and strengthened fundamental rights and rule of law considerations to the detriment of the general will. Those vehicles have triggered major, insidious changes in the law through the demise or semantic transformation of the grand Republican narratives and concepts and the emergence of new modus operandi and procedures.

Although legal practices have significantly changed over the past fifty years, French political philosophers and, a fortiori, the people themselves seem to remain attached to the Republican imaginary. The rise of Anglo-American liberalism in Europe has not translated yet into a new corpus of political thought (nor into a significantly ‘new people’) that would clearly privilege civil liberties. Intellectuals appear so much imbued with general-interest-based Republican thinking that it appears virtually impossible to fully embrace in France a different approach to liberty, as if intellectuals were captive of their own context, as if the Republican values were so deeply rooted in the collective psyche in France that it is impossible to significantly depart from it and embrace a new intellectual path. It is striking, from intellectuals who should precisely be totally insulated from their own autobiography so to speak, be it individual or collective, that few French philosophers have theorised liberalism until its ultimate boundaries without bouncing back to some Republican ideals. It is equally striking that ‘non-Republicans’, politically speaking (that is monarchists or Bonapartists), also embraced the view of an overriding general interest, which is so central in the Republican thought.Footnote ⁴⁵ Of course, different contents are then assigned to the general interest by those ‘non-Republicans’. Yet, what seems to unite them is the concept and function of an overhanging general will that justifies limits to individual action and empowers the state in shaping society: the ‘Res Publica’.

Accordingly, there seems to be no proper escape from the Republican tradition in one form or another and that it is perhaps simply impossible to be ‘properly’ liberal in France. At best, the Republican tradition could adopt a slightly new shape under the sway of liberalism. This is probably what is already happening now.

20.1 Introduction

In contemporary liberal democracies, there is a tension between the democratic element, which demands that the sphere of political decision-making be as large as possible, and the liberal component, which sees some rights as inherent and some norms as inviolable and therefore not open to debate. The tension exists not only because the majority may use the democratic process in a way that infringes on the rights of an individual or a minority, but also because constitutional provisions designed to divide the power between the branches of government and to protect human rights regulate the political process and limit the scope and content of political decisions.Footnote ¹ Thus, as Wiktor Osiatyński puts it, ‘the more there is in the constitution, the less room there remains for democracy and for compromises within society and, consequently, the less power for parliament and more power for those courts in which constitutional claims are settled’.Footnote ² However, one may also argue that this conflict exists not between constitutionalism and democracy but internally within constitutionalism itself. According to Paul Blokker, contemporary constitutionalism is informed by two conflicting imaginaries. A dominant modernist one sees constitutions as regulatory instruments which impose stability and order and are closely related to ideas such as state sovereignty, rational social engineering and universal norms and values. On the other hand, democratic imaginary is connected to notions such as self-government, autonomy, creativity and indeterminacy.Footnote ³ While the former vision serves as a base of legal constitutionalism, the latter imaginary is closely connected to its political counterpart.

According to some interpretations, Polish constitutional crisis can be seen as yet another example of the tensions between legal and political constitutionalism. Between 2015 and 2023, the Law and Justice government significantly altered the composition of the Polish Constitutional CourtFootnote ⁴ (PCT), the Supreme Court (SC) and the National Council of Judiciary and expanded the power of the executive branch in relation to the courts. Even though many Polish legal scholars saw this period as a time of ‘anti-constitutional populist backsliding’Footnote ⁵ during which the multidimensional assault on the rule of law caused Poland to become a constitutional pariah,Footnote ⁶ alternative interpretations were also present. Adam Czarnota claimed that the actions of the previous government could be seen as a ‘necessary adjustment of the system implanted in this part of the world after 1989’:Footnote ⁷ a change aimed at curbing ‘an excess of legal constitutionalism which was definitely anti-democratic in its nature’.Footnote ⁸ Thus, for Czarnota the crisis had a ‘democratic, emancipatory potential’: it was a turn towards political constitutionalism and a search for an independent constitutional identity promoting the rule of ‘a political nation’ and ‘dejuridization’ of the public sphere.Footnote ⁹ Other authors, even if they also explained the crisis in terms of the clash between the liberal and the political component of a democratic system,Footnote ¹⁰ did not share this optimism. As Maciej Pichlak aptly observed, this so-called democratization was superficial in nature and boiled down to bolstering the role of the dominant political actor. The citizens remained excluded from the political process, as their role was restricted to legitimizing the government through the elections.Footnote ¹¹

A unique feature of the Polish constitutional crisis was that it also had a transitional justice dimension. According to Marcin Matczak, the previous government deeply mistrusted the 1997 Polish Constitution,Footnote ¹² seeing it as an impunity instrument enacted in bad faith to protect the beneficiaries of communism from substantive justice using procedural justice as an excuse.Footnote ¹³ This mistrust had been even deeper with regards to the pre-2015 Polish Constitutional Court, which interpreted constitutional provisions as imposing certain limits on transitional justice measures. Because of the PCT case law in transitional justice cases, the Law and Justice leader Jarosław Kaczyński had dubbed the Court a bastion defending the post-transitional system in which the communist elite allegedly maintained power and privileges. His political group also coined the term ‘legal impossibilism’ which was generally used to refer to strict constitutional constraints supposedly stopping the parliamentary majority from introducing reforms necessary for the proper functioning of the state, including those that seek to overcome the legacy of the communist past.Footnote ¹⁴ The Supreme Court transitional justice rulings were subject to similar criticism. This critique was used by the Law and Justice government to justify the provisions reshaping the judicial branch, some of which were presented by their supporters as decommunization measures.Footnote ¹⁵ Regardless of whether these claims were rational or sincere, this rhetoric shows that the Polish rule of law crisis also had a strong transitional justice dimension.Footnote ¹⁶

In 2023, the Law and Justice party lost parliamentary elections to the democratic opposition led by the Civic Platform. Nevertheless, until now the new government has been unable to reverse most of the changes in the judiciary introduced by their predecessors – and, with the President and the PCT loyal to their political affiliates, the crisis lingers on. What is more, a true challenge is to find an answer to the constitutional backsliding which will stand the test of time, including future political changes. Thus, studying the roots of the Polish crisis remains relevant both domestically and internationally, as it can help to provide such a long-term, sustainable solution to the problem of constitutional backsliding.

In this chapter, I further explore the relationship between the Polish constitutional crisis and transitional justice. I begin with the analysis of the normative transitional justice framework of Polish legal constitutionalism. This is a fact-checking enterprise, which aims to verify the claim that constitutional restrictions in this sphere were so strict that they amounted to legal impossibilism. Next, I identify possible inspirations which may have informed the transitional justice constitutional framework in order to assess whether, as some scholars state, Polish constitutionalism simply imitated Western ideas. Finally, in order to trace the origins of the Polish constitutional crisis, I examine the spectrum of alternative transitional justice responses, including the ones supported by the previous government. In the end I claim that the belief in legal impossibilism in the transitional justice domain is rooted in a specific understanding of the objectives of political transition. According to the Law and Justice government, such a transformation must involve a fundamental change in social hierarchy, including an exchange of elites. The belief that liberal constitutionalism prevented this change served as one of the pillars of Polish conservative counter-constitutionalism.

20.2 Polish Transitional Justice Framework and Legal Impossibilism

In Poland, constitutional provisions related to transitional justice are scarce. A 1989 amendmentFootnote ¹⁷ to the 1952 Polish Constitution introduced the principle of democratic state governed by the rule of law and the principle of social justice to the legal system (this regulation was later repeated in the 1997 Polish Constitution). While the law also repealed provisions burdened with communist ideology, changed the name of the State and altered the national coat of arms, additional past-oriented provisions were not implemented until the new Polish Constitution was enacted in 1997. Its preamble refers to 1989 as a year when Poland regained ‘the possibility of a sovereign and democratic determination of its fate’ and recalls ‘bitter experiences of the times when fundamental freedoms and human rights were violated’ in Poland. The Constitution bans political parties and other organizations whose programmes are based upon totalitarian methods and practices of Nazism, fascism or communism (Article 13). It also includes the nullum crimen sine lege principle, but it states that this principle does not prohibit punishing acts which, while domestically legal, were crimes under international law (Article 42(1)). Finally, the Constitution stipulates that there is no statute of limitations for war crimes and crimes against humanity (Article 43) and that the period of limitation does not run when a crime committed by a public official in the performance of their duties is not prosecuted for political reasons (Article 44).

Due to the lack of more extensive constitutional regulations, it was down to the PCT to establish a normative framework with regards to dealing with the past. This is not an exceptional case: in post-communist countries a normative shift towards liberal democracy was to a large extent carried out through constitutional court’s rulings, and especially through their interpretation of the rule of law principle. This principle was incorporated into constitutions of almost all post-communist countriesFootnote ¹⁸ but, due to its general character, its precise meaning in each of the states had to be determined through constitutional adjudication.Footnote ¹⁹

That this meaning was in no way fixed is most evident in two well-known rulings of Eastern European constitutional courts, both related to laws lifting or prolonging statutes of limitation for criminal acts committed during the communist era and not prosecuted for political reasons. In 1992 the Hungarian Constitutional Court (HCC) declared such a provision unconstitutional.Footnote ²⁰ Drawing on a somewhat paradoxical notion of ‘the revolution of the rule of law’, the HCC stated that: ‘A State under the rule of law cannot be created by undermining the rule of law. The security of the law based on formal and objective principles is more important than the necessarily partial and subjective justice’.Footnote ²¹ According to the ruling, ‘if the statute of limitations had run its course, the offender acquires the right as a legal subject not to be punished’Footnote ²² – and the rule of law demands that this trust in one’s impunity be protected. Therefore, lifting or extending the statute of limitations violates the principle of legal certainty, a core part of the formal aspect of the rule of law which must be protected even in the unique historical circumstances of transition.Footnote ²³

On the other hand, a year later, the Czech Constitutional Court (CzCC) upheld a similar provision.Footnote ²⁴ The CzCC relied on a more substantive understanding of the rule of law. According to the Court, even though the principle of legality is an important constitutional virtue, it should not be understood only formally: its interpretation and application should follow its purpose and respect democratic values. The rule of law cannot protect the impunity of communist perpetrators against just demands for their prosecution, as such an immunity would threaten the legitimacy of a new political system.Footnote ²⁵

These two paradigmatic understandings of the rule of law can serve as a background against which the rulings of the PCT will be examined. This section concentrates on the PCT cases regarding the most salient areas of Polish transitional justice: lustration, the reduction of pensions and the prosecution of communist crimes. As I discuss in Sections 20.2.1–20.2.3, this analysis does not support the claim that legal impossibilism existed in the transitional justice sphere.Footnote ²⁶

20.3 Transitional Rule of Law Framework: Inspirations

In this section, I use PCT judgments to identify potential inspirations which may have informed the transitional justice framework developed by the Court.Footnote ⁶⁸ Contrary to popular beliefs, their minor role and increasingly adaptive use does not support the claim that Polish constitutionalism was a mere imitation of Western rule of law requirements.

20.4 Transitional Justice Alternatives: Political Transformation as an Exchange of Elites

Despite an array of implemented transitional justice measures, there is a widespread belief that reckoning with the past was not possible due to the restrictive constitutional framework created by the PCT through the transplantation of Western rule of law standards. In Sections 20.2 and 20.3, I have argued that legal impossibilism conceived in this way is a myth and that the use of the rule of law framework by the PCT was, to a certain degree, adaptive, instead of purely imitative. However, among the members and supporters of the former government the belief in legal impossibilism in the transitional justice context is based on a specific understanding of the core objectives of political transformation. According to this way of thinking, the process of democratization must also involve a significant change in social hierarchy, including an exchange of elites. To illustrate this way of thinking, I now turn to the alternatives to the Polish transitional justice model, which were possible both at the level of constitutional adjudication and constitutional provisions themselves.

20.5 Conclusions: Legal Impossibilism and Polish Counter-Constitutionalism

In her chapter on constitutional sociology, Kim Lane Scheppele describes successful constitutions as ones which ‘manage to create their own social life’.Footnote ¹³⁵ Such constitutions reach beyond legal domain and are able to dominate social imaginary: they ‘shape social expectations and understandings, and come to be taken for granted’.Footnote ¹³⁶ Scheppele understands constitutions as ‘fields of naturalised ideas’:Footnote ¹³⁷ as long as they seem obvious and are unquestioned, even a serious economic or political crisis does not threaten the constitutional order. It is when a constitution is ‘fundamentally challenged’ and its ‘reality becomes questionable’ that social actors need to adjust the rules ‘to rescue its normality’: ‘[i]f they fail – or if they fail to try – constitutions can crumble’.Footnote ¹³⁸

Constitution can become denaturalized through ideological competition. This competition is caused by counter-constitutions, defined by Scheppele as ‘alternative visions of constitutional order, grounded in different understandings of what a constitution is and should be’ which ‘reject the taken-for-granted constitutional vision already in place’.Footnote ¹³⁹ Scheppele attributes the collapse of Hungarian liberal constitutionalism to the emergence of such a counter-constitutional narrative. This narrative presented the 1989 constitution as foreign, offered an alternative constitutional symbol (the Holy Crown of St Stephen, allegedly a ‘true’ Hungarian constitution) and created its own politics of memory.Footnote ¹⁴⁰ Scheppele explains that:

In the vast literature on the Polish constitution crisis, theories as to what caused the decline of liberal constitutionalism in this country differ significantly. The answers given by Polish scholars are varied and include factors as different as the need for group identification, globalization and economic disparities, the fear of the migration crisis and the dominance of legal positivism.Footnote ¹⁴² Many authors agree, however, that the lack of an entrenched democratic culture is one of the reasons of the crisis.Footnote ¹⁴³ While this may well be true, there is also an alternative explanation to consider: that a liberal vision of a political order was well-entrenched but became denaturalized when Polish counter-constitutionalism emerged.

Just like their Hungarian counterparts, Polish conservatives created an alternative constitutional imaginary. An alternate narrative on Polish democratization was formulated, in which the Round Table Agreements and ensuing peaceful transformation were presented not as a historical achievement, but as the original sin of the post-transitional social order: the birth of the new elite, composed of prominent members of the democratic opposition and the former communists. In this vision, the fact that the latter have been able to participate in democratic public life is not a liberal virtue, but proof that the transition was mainly superficial: a true transformation would have to include a fundamental change in social hierarchy, including an exchange of political and economic elites. According to counter-constitutionalists, this was unfortunately not possible, as the 1997 constitution (enacted by the new elite and infused with foreign ideas), the PCT and the rest of the judiciary guarded the post-transitional political, economic and social structure. One of the ways in which they allegedly defended the system was the abuse of general clauses, including the rule of law. In this narrative, the constitutional order was designed to create a state of legal impossibilism, in which social hierarchies would remain intact. Thus, the belief in legal impossibilism which prevented the vetting of public sphere (including the judiciary) is central for this understanding of Polish transition. This interpretation serves to delegitimize liberal constitutionalism and to simultaneously present an alternative, in which the cadres are more important than the institutions and the procedures, and the exchange of elites becomes a prerequisite of a just and efficient state. While the Law and Justice counter-constitutionalism looks for alternative constitutional tokens (such as Solidarity’s popular draft) and political symbols (such as the deposition from power of the Olszewski’s government), it is ultimately also forward-looking, and promises a new, fair social order.

The role which the PCT and the courts play in this counter-constitutional vision explains why the implementation of the Law and Justice project began with changes in the personal composition of the judicial branch. There is, however, another lesson to be drawn from the analysis of Eastern European counter-constitutionalism – and one especially important for the governments which seek to reinstate the rule of law. While it is tempting to look for straightforward, legal solutions to the constitutional crisis, these may not be sufficient in the long run. If Scheppele’s diagnosis is right, then, in order to respond to counter-constitutionalism in a permanent way, its narrative needs to be denaturalized and an alternative constitutional vision has to be present. While this vision may include a return to liberal constitutionalism, its imaginary has to be sufficiently deep to re-inspire and altered enough to make up for its previous deficits; it must also include its own politics of memory. This is a huge and daunting task but, from the perspective of constitutional sociology, a small-scale constitutional project may simply not be possible.