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Central and Eastern European Socio-Political and Legal Transition Revisited Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook Edited by Jürgen Busch / Péter Cserne / Michael Hein / Miklós Könczöl / Miodrag Jovanović / Marta Soniewicka Volume 7 Balázs Fekete/Fruzsina Gárdos-Orosz (eds.) Central and Eastern European Socio- Political and Legal Transition Revisited Bibliographic Information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the internet at http://dnb.d-nb.de. ISSN 2191-8317 ISBN 978-3-631-72761-4 (Print) E-ISBN 978-3-631-72762-1 (E-PDF) E-ISBN 978-3-631-72763-8 (E-PUB) E-ISBN 978-3-631-72764-5 (Mobi) DOI 10.3726/b11406 © Peter Lang GmbH Internationaler Verlag der Wissenschaften Frankfurt am Main 2017 All rights reserved. Peter Lang – Frankfurt am Main ∙ Bern ∙ Bruxelles ∙ New York ∙ Oxford ∙ Warszawa ∙ Wien All parts of this publication are protected by copyright. Any utilisation outside the strict limits of the copyright law, without the permission of the publisher, is forbidden and liable to prosecution. This applies in particular to reproductions, translations, microfilming, and storage and processing in electronic retrieval systems. This publication has been peer reviewed. www.peterlang.com Contents Contents Contents Ivan Szelényi Preface .......................................................................................................................... 7 Balázs Fekete- Fruzsina Gárdos- Orosz Introduction ............................................................................................................. 13 Marie- Elisabeth Baudoin Constitutional Law as a mirror of transition to liberal democracy and its backsliding in Eastern Europe ............................................................................... 23 György Gajduschek ‘The Opposite is True … as Well.’ Inconsistent Values and Attitudes in Hungarian Legal Culture: Empirical Evidence from and Speculation over Hungarian Survey Data ................................................................................. 41 Maciej Dybowski Transition to Democracy and Determinacy of Legal Concepts. A Brandomian Semantics View ............................................................................. 57 Jan Bazyli Klakla The Rebirth of Customary Law in a Time of Transition. The Case of Albania ... 75 Petra Burai Transitioning Boundaries Between Law and Social Practice: Corruption in Hungary Before and After 1989 ........................................................................ 89 Rafał Mańko Law, Politics and the Economy in Poland’s Post- Socialist Transformation: Preliminary Notes Towards an Investigation ....................... 105 Dario Čepo Between Path Dependence and Political Elite Capture: The Second Chambers in Central and Eastern European Unitary States Explained ......... 121 Ketrina Çabiri Mijo and Adela Danaj Explaining the Trajectories of Post- Communist Democratization. The Case of Albania .............................................................................................. 137 6 Contents Danilo Vuković The Hollowing Out of Institutions: Law- and Policymaking in Contemporary Serbia ............................................................................................ 155 Miroslaw Sadowski Collective Memory and Historical Determinacy: The Shaping of the Polish Transition .................................................................. 175 Axelle Reiter Justice (Lost) in Transition: Assessing the ICTY Legacy .................................. 193 Martin Belov The Opening of the Constitutional Order of Democracy in Transition towards Supranational Constitutionalism: the Bulgarian case ........................ 213 Ferenc Hörcher The V4 Cooperation and the European schism over the migration crisis: The history of political thought in the service of political analysis ................ 231 Ivan Szelényi Preface William Graham Sumner Emeritus Professor of Sociology and Political Science, Yale University; Max Weber Professor of Social Sciences and Foundation Dean of Social Sci- Ivan Szelényi ences at NYU Abu Dhabi. He is a Fellow of American Academy of Arts and Sciences and Preface an ordinary member of the Hungarian National Academy of Sciences. 25 Years After the Transition – is the title of the 8th CEE Forum. This is a great topic: such an anniversary is a great opportunity to confront the illusions we harboured 25 years ago and celebrate the achievements of societies which drifted away from communism in the direction promised to be liberal capitalist democracy. The 13 papers presented in this volume offer cool-headed analysis. Most of the papers belong to legal scholarship, while some of them touch upon social, economic, cultural and political processes. I identify myself as a sociologist – with some stretch I may call myself as a political scientist – but I certainly am no scholar of law. Therefore, I am not really competent to act as a commentator on this work. Nevertheless, the legal issues discussed at this conference not only have far reaching implications for the social, political and economic processes the post- communist world is struggling with, but they are questions I have been confronted with in my work on the nature of ‘varieties of post- communist capi- talisms’. I believe I am competent enough to raise some central questions about issues like the rule of law, constitutionalism, the separation of powers, the present and future of liberalism, the struggle to establish private property rights, the nature of legitimacy under post- communism.1 Constitutionalism, constitution making Let me begin with one of the most urgent and difficult tasks during the transition ex- communist countries had to deal with: the pressing problem of establishing the rule of law and the making of liberal (bourgeois) constitutions. Communist states were not cases of ‘rule of law’ in the conventional sense. Nevertheless, they felt a need to create constitutions, following the Stalinist Constitution of the USSR. There was commitment to law actually, but that was 1 See three of my recent publications: Szelényi 2016, Szelényi and Csillag 2015, Szelényi 2015. 8 Ivan Szelényi supposed to be ‘substantive’ rather than ‘formal’. Inspired by Lukács’s theory of ‘reified bourgeois consciousness’ (1923) Pashukanis (1929) criticized formal law as being ‘bourgeois law’ (interestingly this criticism of formal law re- emerged in the West during the 1970s and‘80s in ‘critical legal studies’; so whether the law is ‘substantive’ or ‘formal’ is not a trivial question). During the transition the major task was to transit from a constitution based on substantive legal thinking to formal law. Could it be achieved by readjusting the existing constitution or was there a substantial reason to create a new constitution? In the 1990s in Hungary the Constitutional Court conceptualized an ‘invisible constitution’. This idea worked well, but the court was occasionally accused of ‘creating’ rather than ‘administering’ the constitution. What is the appropriate mechanism to pass a constitution? Shall the source of the constitution be the democratically elected legislative branch of the government (shall it be by simple or qualified majority?), or shall it be the ‘will of the people’, hence approved by referenda? Who are the people and in what way can their will be implemented? The US constitution set the standard for over two centuries by clearly identifying the sovereign: ‘We the people’. The Hungarian ‘Basic Law’ passed in 2011 is more qualified, it states ‘We the members of the Hungarian nation’, by using an ethno- cultural definition of the sovereign (and consciously not identifying it as, ‘we the citizens of the Hungarian Republic’). Furthermore this basic law was approved by the two-thirds majority of the parliament, hence by the elected representatives of the citizens (at that time residents in Hungary), which, given the moderate participation rate at elections and the electoral law rewarding the winners of elections, did not mean the ap- proval of the basic law by the majority of Hungarian citizenry. Separation of powers Post- communist countries were committed to the principle of the separation of powers. In classical political theory (Montesquieu) the executive branch is the monarch and the legislative branch is ‘properly constituted’ and, of course, the judiciary is independent from both. Hence, the idea of the ‘separation of powers’ was advocated by constitutional monarchies and it is more easily applicable to strong presidential systems (like the US system) than to parliamentary democracies where the executive is elected by the legislature, so the separation of these two branches is not quite that clear. In addition, if a party once attains (qualified – if necessary) majority, the separation of the two major branches (legislative and executive) of government does Preface 9 not exist any more (like Hungary in 2010–2014 and for a few months after the 2014 elections). In transitional societies there are strong arguments for a strong executive (es- pecially to facilitate efficient privatization of public goods – while this brings along the dangers of ‘corruption’ or what Bálint Magyar has recently called the ‘mafia state’). So, the separation of powers is highly contested nowadays. There is a great deal of controversy about the role of constitutional courts, too. Is the court

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