The Dubious Contribution of the Central and Eastern European Countries
When one focuses on the legal constitutional culture, the question arises about the relevance of some documents that are not frequently mentioned in the main texts of the doctrine of constitutionalism.
We might identify many documents that take centre stage in the history of some states but are probably less well known in the international debate. This is true, for example, with regard to the documents emerging from the exploration of historical developments of the ancient statehood of the Crown of Bohemia, the Georgian statehood and the Croatian Kingdom. This is also the case of the Polish Constitution of 3 May 1791, the Hungarian Bulla Aurea of the thirteenth century, the Lithuanian Statutes of the sixteenth century and other important texts. Did these documents contribute to the elaboration of European constitutionalism? It is convenient here to remember the arguments presented in previous pages of this book. These documents are certainly part of the history of some European countries; but is that enough to include them among the historical criteria steering the assessment, for instance, of a given constitutional reform by the Venice Commission? Or are we not allowed to treat those documents as constitutive factors of the European constitutional tradition? Certainly, the old Polish Constitution is part of Poland’s national heritage; however, its inclusion in the European constitutional heritage is doubtful. Moreover, the compatibility of the historical and other local traditions of local self-government mentioned in Article 131.1 of the Russian Constitution is doubtful. The fact that these constitutional provisions are based on the roots of some ancient communalinstitutions - preserved by the peasants and considered by Alexander Herzen as envisaging a specifically Russian socialism - is not enough to grant their compatibility with modern European constitutional yardsticks.
We cannot deny that the above-mentioned documents are part of the European constitutional history; however, if we want to answer the questions advanced in these pages, we must investigate the involvement of the concerned countries in the building of the modern state and its constitutional features. Looking at the history of the doctrines of constitutionalism from this point of view enables us to recognise that the statutes and constitutions of Central and Eastern Europe are rarely mentioned as constitutive elements of the European constitutional tradition. We can find an explanation for this by comparing, for instance, the different historical meanings and relevance of the Magna Carta and the Bulla Aurea. The Magna Carta was at the origin of the gradual extension of the protection of humans in England and, eventually, the UK. A crucial role in this process was played by the customs and freedoms of the UK. The connected enlargement of the powers of the parliament opened the way to a modern approach to the safeguarding of civil and political rights and freedoms. The Bulla Aurea was always interpreted according to a restricted idea of a corporative state, where the guarantees that it ensured were based on the exploitation of the land and concerned the protection and the prerogatives of the ruling class. Therefore, the Hungarian experience, as well as that of other Central and Eastern European documents, is correctly described in the European historical legal literature as having been peripheral with respect to other documents of the European constitutional civilisation.[171]
A similar reasoning can be developed regarding the constitutional statute of the judiciary. For example, Article VIII of the old Polish Constitution states that ‘as judicial power is incompatible with the legislative, nor can be administered by the King, therefore tribunals and magistratures ought to be established and elected’. Unfortunately, Polish history did not allow a satisfying elaboration of the organisational models for its implementation.
Therefore, the contribution of the Polish tradition to the constitutionalism regarding judicial matters is not very conspicuous. Furthermore, in Hungary, the substitution of the constitutional developments of the Austro-Hungarian Empire for the experience of the exercise of judicial power by the king and his palatini comites only partially complied with the doctrine of the separation of powers. It is true that the organisation of the judiciary and the careers of the judges also depended on the executive in some Western European countries until the end of World War II. However, in the second part of the twentieth century - while Central and Eastern Europe was held under communist regimes - France, Italy, Spain and Portugal adopted and implemented constitutional provisions that played a relevant role in forming the new models of judicial autonomy and independence. Therefore, the states that experienced communist regimes have had to accept an updating of their constitutional doctrines from external sources. In the presence of these new developments, reference to the old traditions is no longer credible or is completely inadmissible. Furthermore, the same can be said when the authoritarian regimes of the period following World War I are evoked.IV.