Paradoxes and History of the Concept of the European Constitutional Heritage
The Venice Commission’s focus on the concept of European constitutional heritage[89] is required by the need to rely on certain, commonly accepted and clear yardsticks when exercising its functions.
Many difficulties derived from the variety of constitutions of the concerned states. The yardsticks had to be based on the values enshrined in the constitutive documents of the European institutions. Among these values, the Commission included: respect of human rights and fundamental freedoms; a system of checks and balances; the independence of the judiciary; and constitutional justice.[90] However, the identification of these yardsticks implied a participation of the European states in the elaboration of the concept of a European constitutional heritage. Moreover, it was possible to derive this concept from a survey of the national legal orders and their contribution to the development and elaboration of the principles of the constitutionalism. Comparative constitutional law is an indispensable tool for this enterprise.[91] It follows that the European constitutional heritage is made up not only by the European Treaties and conventions in the field of human rights and the rule of law, but also by the concrete, common constitutional experiences of the European states.[92] The European constitutional heritage covers not only the legal provisions in force in the European states, but also the scientific elaboration that favoured the historical process of growth of those legal orders. Its developments have also drawn inspiration from European transnational law and from the case law of the two main supranational courts, the European Court of Justice (ECJ) and the European Court of Human Rights, which have a significant but different role in Europe. Even the language of the ECJ was taken into account insofar as it evoked the common constitutional traditions of the Member States in the fundamental rights that were considered constitutive parts of the European general principles of law.[93]At the base of all this reasoning there was a paradox.
The yardstick adopted for advising and monitoring the constitutional reforms of the new democracies was supposed to be derived from the common heritage of the constitutional experiences of all the European states. It could include the principles and values of the legal orders of the states that aimed to become members of the European supranational institutions and required the advice and monitoring of the Venice Commission. The paradox could be bypassed only through a historical analysis of the European developments of constitutionalism. It is true that many states had been in the position of offering an effective contribution to the formation of the relevant values and concepts of the constitutionalism. The history of these states provides evidence of the past and present contributions to the implementation of those concepts and values. Moreover, their participation in the scholarly elaboration in that field is important. However, it was only a group of the European states that participated in this process. Some European states, included in the Warsaw Pact in the second part of the twentieth century, had not been involved in these developments, as a connection with the traditions of constitutionalism was missing. These states had to leave behind their previous constitutional experiences, in particular where these experiences were connected with the bonds of the Warsaw Pact. In fact, the former members of the Warsaw Pact had to gain a new credibility via cooperation with the supranational institutions.[94]Therefore, the identification of a European constitutional heritage implied that the constitutional experience of all other European states that were involved in the elaboration of values and concepts of European constitutionalism was taken into due consideration. The principles of constitutionalism were deeply rooted in these states since the creation of their modern legal orders and/or after special historical events. The French Revolution, the spread of national states after the First World War and the fall of authoritarian regimes in Europe in the 1940s and 1970s had all been peculiar transitions.
The heritage of the French Revolution in particular had been of primary importance in the progressive epiphany of contemporary states. Therefore, legal and political actors have to pay attention to the events that occurred in Europe after the French Revolution.At this point, it is necessary to look at documents and events which preceded the advent of the Enlightenment. The origins of the modern state are certainly European, and are strictly connected with the developments of the European systems of law. According to Harold Berman, who studied the great ‘revolution, which initiated the Western legal tradition, the birth of the modern state in Europe coincides with the pontifical revolution of Pope Gregorius VII in the eleventh century.11 At that time, the emphasis on the separation of the Roman Church from the civil authorities opened the way to the advent of new legal doctrines. Developments of the practice of the living law and of the scientific legal researches were strictly connected. Inspiration has been especially drawn from the history of the English law of the twelfth century, the so-called ‘legal century’. According to Pollock and Maitland,[95] [96] the age of Glanvill, the age of the first compilation of the English law and customs, coincides with the advent of the European legal schools in the frame of the newly established universities. The complexity of the new society required a new approach to legal studies. There was a similar occurrence in Italy when the lawyers started reading the Corpus iuris through the eyes of the late Middle Ages.[97] The rebirth of Roman law and the growth of Church law were decisive influences. Legal doctrines and theories offered the necessary support to the elaboration of the concept of the state, of its institutions and of their authority. The twelfth century saw the advent of the initial elaboration of the principle rex in regno suo est imperator:[98] the sovereignty of the monarchy was construed as the basis of the sovereignty of the kingdom. The difference certainly depends on the message of the two documents. It is true that the Magna Carta stayed in force for a short period of time, while the Bulla Aurea is considered to have been a stable element of the continuity of Hungarian legal history. The Bulla Aurea played a crucial role in shaping the Hungarian state. However, it is also true that the legal force of the Magna Carta was updated more than 30 times in the following years and was frequently amended over the centuries. Moreover, the English document was certainly aimed at ensuring the privileges and special rights of certain persons and classes. However, it simultaneously displayed great attention to the protection of all the persons of the kingdom, and anticipated modern theories and practices of the universal safeguarding of human rights. If we compare these different developments, we can understand Jarasiunas’s opinion that research should avoid the Procrustean bed of the present categories of constitutionalism, at least with regard to the prehistory of constitutionalism.[103] However, it is difficult to adopt such an approach when we are dealing with modern and contemporary European history, which highlights the distance of the Central and Eastern European countries from Western civilisation. It should be recognised that in the historical European literature those countries are described as having a peripheral character with respect to other parts of Europe. They always appear to be trying to reach Western yardsticks. However, they have not always got the results they hoped for. According to common opinion, the history of Central and Eastern Europe has been characterised by gaps in statehood, national calamities, and social and economic difficulties. This past especially deserves to be explored today, when the ideals of Western constitutionalism ‘seem to have lost their mobilizing strength’.[104] III.