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From "civil society" to "Europe" [electronic resource] : a sociological study on constitutionalism after communism /
by Grazyna Skapska.
imprint
Leiden ; Boston : Brill, 2011.
description
xi, 253 p. ; 25 cm.
ISBN
9789004192072 (hardback : alk. paper)
format(s)
Book
More Details
imprint
Leiden ; Boston : Brill, 2011.
isbn
9789004192072 (hardback : alk. paper)
restrictions
Licensed for access by U. of T. users.
catalogue key
11666049
 
Includes bibliographical references (p. [239]-250) and index.
A Look Inside
Excerpts
Introduction or Preface
Introduction: the objectives of this bookThis study aims at a sociological analysis of constitutionalism after the collapse of the communist regimes in East Central Europe (ECE) on the verge of the 21st century.[1] Because of their range and scope, as well as their social context and political consequences European and global these events are easily compared to earlier, historical events and processes that took place in Europe. The end of the 18th century witnessed the final phase of the earlier epoch of feudalism, and the realignments, territorial changes, shifts of alliances, and, above all, the social transformation these phenomena entailed. This chain of events culminated (symbolically and in fact) in the French Revolution; its more contemporary counterpart was the series of relatively peaceful overthrows of communist governments in the 1980s and 90s.The similarity between the revolution in France and the revolutions in East Central Europe consists in the fact that, then and now, the collapse of the former regime and the installment of a new, more liberal one was not imposed by some enlightened rulers (perhaps with the exception of the former Soviet Union), and not from outside (by victorious armies, for instance), but predominantly as a result of the workings of internal factors. The greatest role in the collapse of feudalism as well as of communism was played by society the third estate in the former case, and the dissident intellectuals as well as underground movements and civic organizations in the latter.Indeed, as has been observed:"The socially most astonishing and surprising (...) phenomenon of the 1980s was the unexpected renaissance of a political subjectivity, outside and inside the institutions (...) [T]he themes of the future which are now on everyone's lips, have not originated from the farsightedness of the rulers or from the struggle in parliament and certainly not from the cathedrals of power in business, science and state. They have been put on the social agenda against the concentrated resistance of this institutional ignorance by entangled, moralizing groups and splinter groups fighting each other over the proper way, split and plagued by doubts" (Beck in Beck, Giddens, Lachs 1994: 21).According to the quoted author, and many others writing on the new social subjectivity, or agency that emerged in Eastern Europe in the 1980s, it would be the civil society in its political form that contributed to the formation and consolidation of democratic-liberal constitutionalism after the fall of communism. However, the question remains as to the extent to which the activity of civil society correlated with other factors in the systemic collapse, especially with its political mechanisms, and to what extent the emerging, postcommunist constitutionalism presents a response to civic society expectations.[2]It should also be stressed already in the introduction of this book that this new social subjectivity was important also because the attitudes of the external world, of the world leaders, prime ministers and presidents of the most powerful nations toward any deeper political changes and shifts were apprehensive, if not hostile, as we learn now, after twenty years later. This factor was crucial, and certainly it influenced the course of events, and the self-limitations imposed on themselves by the democratic dissidents.In Eastern Europe, the scope and range of the shifts were enormous and, considering only their geo-political dimension, one can easily see that the events of the last two decades of the 20th century were even greater and broader than the liberalization and democratization initiated more than two centuries earlier. After 1989, some seventy five million people in Central and an additional more than two hundred million in Eastern Europe experienced such changes; the geo-political map of the continent was altered dramatically. New countries emerged in its central, eastern, northern and southern regions, and some old ones ceased to exist. We witnessed the collapse of an imperial power, velvet divorces, as well as re-unifications; the realignments have been not only European but, in fact, global. Territorial changes and shifts in alliances followed closely, one after another in the immediately succeeding years. As a result of the relatively successful consolidation of democracy and reformations of economies, eight Central European countries were accepted as members of the European Union in the year 2005, and a further two in 2007 events entirely unforeseen only several years ago. At the same time, however, a noticeable and considerable disenchantment with democracy and the market economy were observed a growing distrust in public institutions, populism, and apathy. These outcomes were unforeseen at the beginning of the transformation.The French Revolution, the events which took place in the United States at about the same time, and the Glorious Revolution in England were characterized by new, powerful ideas about political and social order, and new concepts of citizenship, civic rights, and liberties. Hopes and expectations nurtured by their participants were elaborated into political institutions, and enshrined in constitutional arrangements.Yet one wonders about the contributions the peaceful post-1989 revolutions have made to the development of liberal constitutionalism, the imprint they have left on constitutional provisions, and their impact on the development of ideas regarding justice, civic and human rights, and human dignity the topical issues of the peaceful revolutions. There is a question as to whether the communist and postcommunist experiences yielding new constitutions are importing new meanings and/or adding new dimensions to the project of liberal democracy. This issue is even more important in the new, enlarged European Union. One thing is certain, recent experiences with totalitarianism as well as the direct and dramatic experiences with military interventions and the crushing of democratic aspirations in Hungary in 1956, in Czechoslovakia in 1968, and the threat of military intervention in Poland in 1956 and 1981 would not go without leaving a permanent trace on the consciousness and political and legal cultures of the people involved, making them more sensitive to some constitutional issues, such as fundamental human rights violations, promises of justice, and the rule of law. One should not forget about the very imposition of communism in the 1940s when hundreds of thousands were killed, or deported to Siberian gulags, or simply disappeared.Thus, twenty years after the initial changes, and only little less after the first democratic constitutions were proclaimed, it is a time to analyze the formation of constitutionalism after communism: a process originally aimed at the political expression of civil sovereignty, so aptly phrased by Vaclav Havel, one of the most prominent Eastern European thinkers and statesmen. Considering the goals and their results in their current form, one should not forget, too, that postcommunist transformation does not represent an unwavering, linear change from one point of history communist totalitarianism, or Stalinism to another, a well-defined and unproblematic liberal democracy. On the contrary, one should remember that it is as much an open process as democracy is an open project. Especially the changing ideas and concepts about the rule of law, human and civic rights, political power, the government, and the state contribute to a vision of liberal democracy as an unfinished project of great potential, rooted in the ideas of citizenship, freedoms, and liberties that have been developing over centuries in a never-ending process. It must also be kept in mind that the new, postcommunist constitutions are proclaimed in a time of accelerated global change entailing growing internati
First Chapter
Introduction: the objectives of this book This study aims at a sociological analysis of constitutionalism after the collapse of the communist regimes in East Central Europe (ECE) on the verge of the 21st century.[1] Because of their range and scope, as well as their social context and political consequences – European and global – these events are easily compared to earlier, historical events and processes that took place in Europe. The end of the 18th century witnessed the final phase of the earlier epoch of feudalism, and the realignments, territorial changes, shifts of alliances, and, above all, the social transformation these phenomena entailed. This chain of events culminated (symbolically and in fact) in the French Revolution; its more contemporary counterpart was the series of relatively peaceful overthrows of communist governments in the 1980s and 90s. The similarity between the revolution in France and the revolutions in East Central Europe consists in the fact that, then and now, the collapse of the former regime and the installment of a new, more liberal one was not imposed by some enlightened rulers (perhaps with the exception of the former Soviet Union), and not from outside (by victorious armies, for instance), but predominantly as a result of the workings of internal factors. The greatest role in the collapse of feudalism as well as of communism was played by society – the third estate in the former case, and the dissident intellectuals as well as underground movements and civic organizations in the latter. Indeed, as has been observed: "The socially most astonishing and surprising (...) phenomenon of the 1980s was the unexpected renaissance of a political subjectivity, outside and inside the institutions (...) [T]he themes of the future which are now on everyone’s lips, have not originated from the farsightedness of the rulers or from the struggle in parliament – and certainly not from the cathedrals of power in business, science and state. They have been put on the social agenda against the concentrated resistance of this institutional ignorance by entangled, moralizing groups and splinter groups fighting each other over the proper way, split and plagued by doubts" (Beck in Beck, Giddens, Lachs 1994: 21). According to the quoted author, and many others writing on the new social subjectivity, or agency that emerged in Eastern Europe in the 1980s, it would be the civil society in its political form that contributed to the formation and consolidation of democratic-liberal constitutionalism after the fall of communism. However, the question remains as to the extent to which the activity of civil society correlated with other factors in the systemic collapse, especially with its political mechanisms, and to what extent the emerging, postcommunist constitutionalism presents a response to civic society expectations.[2] It should also be stressed already in the introduction of this book that this new social subjectivity was important also because the attitudes of the external world, of the world leaders, prime ministers and presidents of the most powerful nations toward any deeper political changes and shifts were apprehensive, if not hostile, as we learn now, after twenty years later. This factor was crucial, and certainly it influenced the course of events, and the self-limitations imposed on themselves by the democratic dissidents. In Eastern Europe, the scope and range of the shifts were enormous and, considering only their geo-political dimension, one can easily see that the events of the last two decades of the 20th century were even greater and broader than the liberalization and democratization initiated more than two centuries earlier. After 1989, some seventy five million people in Central and an additional more than two hundred million in Eastern Europe experienced such changes; the geo-political map of the continent was altered dramatically. New countries emerged in its central, eastern, northern and southern regions, and some old ones ceased to exist. We witnessed the collapse of an imperial power, velvet divorces, as well as re-unifications; the realignments have been not only European but, in fact, global. Territorial changes and shifts in alliances followed closely, one after another in the immediately succeeding years. As a result of the relatively successful consolidation of democracy and reformations of economies, eight Central European countries were accepted as members of the European Union in the year 2005, and a further two in 2007 – events entirely unforeseen only several years ago. At the same time, however, a noticeable and considerable disenchantment with democracy and the market economy were observed – a growing distrust in public institutions, populism, and apathy. These outcomes were unforeseen at the beginning of the transformation. The French Revolution, the events which took place in the United States at about the same time, and the Glorious Revolution in England were characterized by new, powerful ideas about political and social order, and new concepts of citizenship, civic rights, and liberties. Hopes and expectations nurtured by their participants were elaborated into political institutions, and enshrined in constitutional arrangements. Yet one wonders about the contributions the peaceful post-1989 revolutions have made to the development of liberal constitutionalism, the imprint they have left on constitutional provisions, and their impact on the development of ideas regarding justice, civic and human rights, and human dignity – the topical issues of the peaceful revolutions. There is a question as to whether the communist and postcommunist experiences yielding new constitutions are importing new meanings and/or adding new dimensions to the project of liberal democracy. This issue is even more important in the new, enlarged European Union. One thing is certain, recent experiences with totalitarianism – as well as the direct and dramatic experiences with military interventions and the crushing of democratic aspirations in Hungary in 1956, in Czechoslovakia in 1968, and the threat of military intervention in Poland in 1956 and 1981 – would not go without leaving a permanent trace on the consciousness and political and legal cultures of the people involved, making them more sensitive to some constitutional issues, such as fundamental human rights violations, promises of justice, and the rule of law. One should not forget about the very imposition of communism in the 1940s when hundreds of thousands were killed, or deported to Siberian gulags, or simply disappeared. Thus, twenty years after the initial changes, and only little less after the first democratic constitutions were proclaimed, it is a time to analyze the formation of constitutionalism after communism: a process originally aimed at the political expression of civil sovereignty, so aptly phrased by Vaclav Havel, one of the most prominent Eastern European thinkers and statesmen. Considering the goals and their results in their current form, one should not forget, too, that postcommunist transformation does not represent an unwavering, linear change from one point of history – communist totalitarianism, or Stalinism – to another, a well-defined and unproblematic liberal democracy. On the contrary, one should remember that it is as much an open process as democracy is an open project. Especially the changing ideas and concepts about the rule of law, human and civic rights, political power, the government, and the state contribute to a vision of liberal democracy as an unfinished project of great potential, rooted in the ideas of citizenship, freedoms, and liberties that have been developing over centuries in a never-ending process. It must also be kept in mind that the new, postcommunist constitutions are proclaimed in a time of accelerated global change entailing growing international cooperation, and the formation of international or transnational legal orders. This means growing complexity, a considerable ambiguity and uncertainty with regard to the trajectories of the liberal democracy, and new self-definitions of political societies emerging out of communism. Moreover, in contrast to the French Revolution especially, the so-called refolutions (a hybrid of revolution and reform) in Eastern Europe – preceded by the overthrows of authoritarian regimes in South-Western Europe, in Spain and Portugal – were of an astonishingly peaceful nature which fact was enthusiastically applauded by neighboring countries. The refolutions were characterized by the lack of a clear rupture in the modern world. Moreover; here it was not politics, but law and economy which played the leading role, forming the new orthodoxies of the rule of law, and economic neo-liberalism. Therefore, it is interesting to investigate how these pressures from the bottom up and from the outside, the lack of clear rupture or rituals of passage, the specific experiences with totalitarianism, the already mentioned new orthodoxies, and the involvement in transnational (and above all European) cooperation have all contributed to the development of postcommunist constitutionalism, once initiated by dissenting groups of citizens. Linking the internal legal order with the external, international one, especially with respect to human rights protection, postcommunist constitutions are of singular importance in post-totalitarian societies; they constitute the initial steps in the redirection of the entire legal order from one that is nation or state or system-oriented to one focused on the rule of law, and human and civic rights protection. Constitution and constitutionalism: a sociological approach Constitutions are not mere arrangements of the division of powers; they are understood as public symbols and birth certificates of modern nations, and their proclamations as turning points in the nation history. Such an understanding clearly indicates some crucial social values reflected in the constitution, some social processes which culminate in its proclamation, and the reciprocally structurating effects of a constitution on the development of the newly born politically organized nation. As the moral and social philosopher Hanna Pitkin argues, constitutions are something that we have that we are and that we do; they reflect the action or activity of constituting – that is, of founding, framing and shaping something anew (Pitkin 1987: 168). Constitutions however not only reflect constituting, they also reflect the ways of thinking, and in this way they present a historically accumulated collective wisdom and experience, presently, in sociological theory called cultural capital. A modern constitution has a complex structure. It consists of regulations on the structure of government, of provisions defining human, civic, social and cultural rights, of principles of society’s involvement in the government – in various forms of public legislative initiative, referenda, and constitutional legal actions open to citizens – as well as of provisions referring to the relationships between the national constitution and international covenants and treaties. Additionally, constitutional adjudication in ECE is sometimes called an invisible constitution because of the great impact of procedural justice on the development of the legal order and its coherence with constitutional principles, and above all because in the judgments and verdicts of constitutional courts and tribunals the fundamental constitutional principles are formulated or their understanding clarified (Sajo1995). Also in this respect the international dimension of modern constitution should be stressed, especially the direct implementation of the verdicts of supranational courts and tribunals – in the case of European Union first and foremost the verdicts and judgments of the European Tribunal of Human Rights, and the European Tribunal of Justice. There is also an important socio-normative, semantic and communicative dimension of the constitution. From the point of view of sociological analysis, the latter is of particular interest – the symbols and meanings to which constitutional provisions appeal and to which they refer. Composed of open-ended and polysemic rules and principles – such as the rule of law, or the law-governed state, human dignity, social justice, human rights, protection of property rights, of freedoms and liberties – constitution either appeals to the existing resources, democratic traditions, and norms of public morality, to the existing symbols and meanings, or it helps to form them anew. In this way a modern constitution and constitutional adjudication provide a language and help society to communicate on matters of public concern, to define important phenomena an processes, and eventually reach a constitutional consensus. As it was once observed by Cass Sunstein, the constitution in particular, and the law, in general, bear an important expressive function because of the statements legal provisions make, as opposed to the functions of the law in directly controlling behavior (Sunstein 1996: 66). Because of those statements inherent in constitutional provisions, in this book the constitution will be defined as a theory of society about itself, as a complex set of meaningful symbols and of concepts thanks to which the society is able to define itself. As already stressed, significant for sociologists are the cognitive and symbolic dimension and the charismatic quality of the constitution, as well as the reasons justifying it and facilitating interpretation of open-ended constitutional provisions. Informing public discourse, they are crucial for the formation of a positive constitutional consensus, i.e.of an overlapping social consensus on the principles of sociopolitical order, and on the interpretation of fundamental rights. This symbolic dimension is usually reflected in the constitution preamble and its most crucial provisions – its opening norms. In the Preamble of the 1997 Polish Constitution one can read that its framers were Beholden to our ancestors for their labors, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and in universal human values ; its framers were Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland, and recognized Our responsibility before God or our own consciences. According to this Preamble, the Polish constitution comprises the basic law of the State, founded on respect for freedom and justice, cooperation between public powers, social dialogue as well as on the principle of strengthening the powers of citizens and their communities. This Constitution also refers to the Republic of Poland as the common good of all citizens (Art. 1). The Preamble of the Czech Republic 1992 Constitution declares the Republic a …part of the family of European and world democracies, Home of equal and free citizens resolved to abide by all time tried principles of a law-observing state and the principles of civil society ; according to declarations in the Preamble to the 1992 Constitution of the Republic of Slovakia, it presents the spiritual heritage of Cyril and Methodius, and the historical legacy of the Great Moravian Empire. It should protect Free life and the development of spiritual culture and economic prosperity of Slovak society. Only in the Hungarian Constitution is the preamble dry and succinct. This constitution – meant as an amendment to the 1949 one – was not intended as the birth certificate of a new, democratic nation, but rather a way to facilitate a peaceful political transition to a constitutional state.
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Summaries
Bowker Data Service Summary
In East Central Europe, constitutionalism comprises an effort by postcommunist societies to consolidate around certain values, principles, and rules that would facilitate the formation of a new political architecture. This book debates the features of postcommunist constitutionalism.
Description for Reader
All those interested in postcommunist transformation, and generally sociologists, political scientists and constitutional lawyers.
Main Description
In East Central Europe, constitutionalism comprises an effort by postcommunist societies to consolidate around certain values, principles, and rules that would facilitate the formation of a new political architecture as well as a new political identity for their countries. Based primarily on the experience of Poland - in comparison with other East Central European countries - this book debates the specific features of postcommunist constitutionalism. The result is a theory of reflexive constitutionalism (informed by the sociological theory of reflexive modernization) which assesses critically the intellectual resources as well as the consolidating potential of the classic foundations of liberal democracy within the reality of postcommunist transformation.

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