Comparing Western and Eastern Europe Traditions

The peculiar institutions and the unpredicted achievements of the ancient constitutional systems of the Central and Eastern European countries have impressive characters for scholars exploring their development.^[105] They are not studied as a part of the European common constitutional heritage.

Their experience is not considered by the majority of scholars to be a constituent element of the European constitutional tradition. This is surprising, as the Hungarian Bulla Aurea is a very ancient constitutional document. However, only those documents and institutions that are at the base of the constitutional developments, for instance, of the UK and France, or, in more recent times, of Belgium, Italy and Germany, are studied and elaborated in assessments of the progressive formation of the European constitutionalism. The impression is that only liberal democratic states that have been successfully established for a long time are considered as adequate terms of reference for modern constitutionalism in the elaboration of the European constitutional heritage. Even the Polish Constitution of 3 May 1791, notwithstanding its European priority after the adoption of the American Constitution, has not been the object of special attention in that context. Although it had been in force for only a short time, it was a sign of the spreading of the ideas of the Enlightenment. The Polish Constitution was aimed not only at guaranteeing the privileges of the gentry and the rights of the burgers, but also at insuring a protection by law of the peasants. Some elements of its content would have probably deserved to be taken into account by the historians even before the dissolution of the Warsaw Pact, which is the starting point of new studies about the Polish legal traditions. The unfortunate developments of Poland prevented its consideration by the doctrines and theories that are the basis for the scientific and judicial construction of European common constitutionalism.

Does this fact oblige us to deny the existence of a Polish constitutional tradition? Certainly, this opinion is not shared by those scholars and intellectuals who are interested in keeping alive the historical tradition of the efforts made by the Polish people to safeguard the Polish identity in the frame of the European experience. Recently, Hanna Suchocka claimed the existence of a strong Polish constitutional tradition. According to her, the 1791 Polish Constitution ‘was built on such principles like sovereignty of the nation, separation of power with independent courts, guarantee of the religious tolerance’.^[106]

This position deserves attention. It cannot be denied that documents with the historical characteristics of the Bulla Aurea or of the Polish 1791 Constitution played a specific role in the development of the legal cultures of Hungary and Poland. They can be a positive factor in the recognition of the identity of their country. However, a long continuity of compliance with principles and legal institutions is an essential factor for the identification of a significant constitutional tradition. The existence in the past of interesting and admirable documents is not sufficient to justify the presence of a historical and relevant tradition in the absence of an efficacious implementation of those documents. On the contrary, discontinuities, frequent and long ruptures, continuous inobservance of the past principles and legal institutions make difficult the recovery of old historical constitutional doctrines. After the ancient epiphanies of primitive constitutionalism, the Central and Eastern European countries have been impacted by many negative factors, such as: the deprivation of their state's sovereignty in the nineteenth century; the advent of authoritarian regimes after the First World War; and the long presence of the communist dictatorships. These tragic historical events have profoundly affected the characteristics of state institutions in Central and Eastern Europe.^[107]

The situation following the fall of the Berlin Wall required the Central and Eastern European States to research new ways and modalities to establish a constitutional system.

In recent decades, the exigencies of the time had opened the way to a rethinking of the doctrines of constitutionalism, which had been all-but ignored in those countries. They have had to be compensated for the time lost, and their history has not always been helpful to this purpose. Ideas of constitutionalism have evolved profoundly and the reappraisal of old experiences has not been sufficient. The factor of continuity was missing even in those countries where interesting constitutional experiences had taken place in the first part of the twentieth century. These experiences are rarely mentioned. In Czechoslovakia, for example, the epiphany of the judicial review of legislation in Europe in the 1920 Constitution would have deserved attention. However, the application of the relevant law of 29 February 1920 was interrupted at the end of the first term of the Czech Constitutional Court. New judges were appointed in 1938, but the Court was overwhelmed by the dissolution of the state in 193 9.^[108] Authoritarian developments affected in a similar way the life of the 1920 Estonian Constitution, which was widely considered the most democratic order anywhere in the world due the important presence of direct democracy provisions. The social rights introduced by the provisions of the 1921 Yugoslav Constitution also had an ephemeral life.

Instead, in some Central and Eastern European countries, it is possible to find an attempt to legitimise the present choices through the quotation of ancient documents in the preambles of their national constitutions. This is the case in the Czech Republic, whose Constitution makes a generic reference in the preamble to the ‘sound traditions of the ancient statehood of the Crown of Bohemia as well as of the Czechoslovak statehood’. The preamble of the Georgian Constitution mentions not only the ‘centuries-old traditions of the Georgian Statehood’ but also the ‘main principles of the 1921 Constitution’. All these statements apparently make greater claims to the national identity of these countries than their constitutional heritage.^[109] They are connected with complex and contradictory experiences that are not taken into consideration in the elaboration of the main doctrines of the European constitutional heritage. The preamble of the Constitution of Croatia is equally destined to confirm and support the ‘historical, national and natural right of the Croatian nation’ It opens the text and precedes all of its provisions with reference to important events in Croatian history and to relevant deliberations of the Croatian Sabor in the past centuries.

The specific purposes of these preambles make their elaboration in view of the identification of a common European constitutional heritage very difficult. They are especially concerned with specific claims to the national identity of the state. This does not mean that those claims are unfounded. However, the recognition of the right to self-determination does not depend on the specific vindication of a single country only. It has to be the result of the common construction of the community of European states, or of the majority of them. The recognition of the states emerging from the dissolution of the Yugoslavian Federation offers clear confirmation of this opinion. Only the common elaboration of the problem could give evidence of the general acceptance of the right to self-determination and of the values and requirements that underpin it.

Easier acceptance can be guaranteed to the individual choices of a state concerning particular aspects of its organisation. Such specific arrangements should still comply with the European constitutional principles. However, this guideline was disregarded in the case, for instance, of the provisions of the Czech Republic Constitution that concern the independence of the judiciary. The Czech Republic was admitted to the Council of Europe notwithstanding that its Constitution does not provide for judicial ‘self-government’ similar to the Mediterranean model. While Article 81 of that Constitution states the principle of independence of the judges, Article 93 entrusts the function of appointing judges for life to the President of the Republic. Moreover, Article 93 of the Constitution reserves the regulations of the procedures of appointment of the judges by the President of the Republic and of the professional requirements of the new judges to parliamentary legislation. This choice resembles those of other states of Central Europe, such as Germany and Austria.

In fact, the constitutional history of some countries can offer examples of ‘paradoxical subjects-unpredicted achievements’^[110] of the political-legal system, which are characteristic of Central and Eastern Europe according to Jarasiunas.

This author is obviously referring to Lithuania, where the Constitution makes reference in its preamble to Statutes defined by the framers as ‘legal foundations of the Lithuanian Nation’ Has this reference the same meaning of the above-mentioned quotations that are present in the preamble of the Croatian Constitution? Does it concern something more than the Lithuanian national identity? The reference ambiguously covers also ‘the Constitutions of the Republic of Lithuania’. Does this reference allow for a connection of the foundations of the Lithuanian Nation to the European constitutional heritage? The Lithuanian Statutes of 1529,^[111] 1566 and 1588 have a larger content than the documents quoted, for instance, in the preamble of the Croatian Constitution. These Statutes not only deal with the claim of the Lithuanian nation to its own identity and sovereignty, but also cover civil, criminal and procedural matters. In these fields, Europe has had innovative developments in the principles of the protection of human rights, which are a constituent part of the European constitutional heritage. The Lithuanian Statutes entered into force in the frame of a country where the presence of the ius commune offered evidence of the influences of the Roman legal culture. The establishment of the University of Krakow and the jurisprudence of the judges of Vilnius and Krakow also played important roles in this picture. However, legal historians share the opinion that the content of the Statutes is strictly linked with the social and political situation of the country in the sixteenth century. The Statutes are recognised as having special importance as one of the first examples of a full written codification, which followed the path of the codification of the old Lithuanian customs started by Casimir’s Code in 1468. The Statutes aimed to balance factors of centralisation (including support of the king, ensured by the preservation of elements of Roman law) with the guarantee of special powers and privileges for the Lithuanian magnates.

Therefore, the Statutes are seen by historians to be the result of very peculiar Lithuanian developments.

The Statutes distanced the country from the evolution of the Western part of Europe. As Lithuania and Poland made up a common kingdom, Lithuania was involved in the European Enlightenment through the adoption of the Polish Constitution of 3 May 1791. Notwithstanding the traditional cultural links of both these countries with European civilisation, the events of the nineteenth and twentieth centuries have been an obstacle for the participation of Lithuania in the elaboration of the European constitutional heritage. Even the reference in the preamble of the present Constitution to the ‘Lithuanian Constitutions’ does not help. That reference is probably to the Lithuanian Constitution of 1922, and can be likened to the resumption by the newly independent Latvia of its Constitution of 1922 (significantly amended in 1998). Both of these constitutions are considered by the framers of the new Latvian and Lithuanian constitutional orders as factors in the continuity of sovereignty in the concerned states. However, in both cases, the important element of the continuity of adhesion to the principles of constitutionalism is missing. In the 1920s and 1930s, both countries suffered the advent of authoritarian regimes, followed, in 1940, by their inclusion in the Soviet Union. There was a rupture in the continuity of the progress of constitutionalism that was taking place in other parts of Europe after the Second World War. At the moment of their transitions to a liberal democracy, both Lithuania and Latvia had to regain the same level of principles of constitutionalism that had been obtained in the Western European countries.

IV.

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Source: Bartole Sergio. The Internationalisation of Constitutional Law: A View from the Venice Commission. Hart Publishing,2020. — 152 p.. 2020

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