András Sajó

Neutral Institutions: Implications for Government Trustworthiness in East European Democracies

The creation of neutral institutions within the state is part of the attempt to create more trustworthy post-communist states.Yet some question whether it is possible for governments to remain neutral in matters that divide society. This specific concern brings up broader issues: What happens to trust when the state is increasingly identified with neutral institutions instead of democratically legitimized but partisan entities? Are neutral governmental and public institutions an answer to the legitimate distrust in the state that animates liberal constitutional institutional design? In seeking answers to these questions this chapter first analyzes the meaning of state neutralization and its implications for trust in government. The following section discusses independent agencies, primarily media regulatory authorities and central banks, and considers the level of independence and neutrality of prevailing post-communist institutions. Finally, some speculations are offered on the impact of neutral government institutions on public trust. Regulating public life by independent agencies differs considerably from the use of democratically legitimized power and authority. Hence new forms of trust in and loyalty to these institutions may emerge. Nevertheless, ostensibly neutral spheres of public life remain subject to governmental and partisan influence in Eastern Europe.

Constitutional Law in Twenty Years from Now

The principles of constitutional law as those of many other disciplines seem to develop and to be replaced by new paradigms in the light of globalization. The present article using the genre of constitutional futurology attempts to determine whether this change is real or an illusory impression, and to predict the future of constitutional law and of scholarship reflecting on constitutional issues. A mighty forecast emerges from the interplay of opposing forces. While the withering away of the constitutionalist paradigm is unlikely partly because of the lack of a new generation of legal scholars following new patterns of thinking, partly because there is no reason to assume that the prevalent socioeconomic order would cease to exist , the essay maps a number of possible challenges like genetic engineering or personal computers interconnected in the World Wide Web , which constitutionalists shall expect to face in theory and in practice alike.

Emotions in Constitutional Institutions

The prevailing justification for constitutional institutions is that such institutions reflect and enable rational solutions to social problems. However, constitutions are constructed through emotionally driven processes that reflect both the public sentiments of the day and, at least to some extent, basic moral emotions. Historical examples from France and the United States demonstrate the role of such emotional processes in shaping the design of liberal constitutionalism. Further, constitutional law both sets and regulates emotional display rules; favors or disfavors certain emotional commitments; and, particularly through the formulation of fundamental human rights, reflects and shapes emotional moral judgments. The emotional contributors to constitutional design and interpretation may be called “constitutional sentiments.”

Becoming “Europeans”: The Impact of EU “Constitutionalism” on Post-Communist Pre-Modernity

One of the persistent fears in the European Union is that the accession countries will be unable to catch up with the prevailing practices of constitutionalism and the rule of law that supposedly ground the common tradition of Europe. This fear is rationalized when considering that unbridled nationalism necessarily impacts upon territorial stability. There are other concerns regarding the weakness of democratic tradition especially after the years of totalitarian rule. It is believed that the institutional systems in place for enforcing the rule of law1 merely exist in a formal sense rather than in terms of self-sustaining value commitments. The scope of this chapter does not allow for an analysis into the truth of such assumptions. It is undeniable that extremist nationalism is not absent in the rhetoric, and sometimes actual policies, of Eastern European political elites who in turn find popular endorsement for their nationalistic campaigns.2 These nationalistic sentiments will be echoed once the population of new member states will be confronted with negative experiences as a result of them being unable to successfully articulate their special interests in a great “empire”; unfavorable comparisons of “Brussels as the new imperial power” with the “yoke of the Soviet empire” has already been made in many former communist countries. One of the striking features of East European nationalism is that it is embedded in a value system that is (at best) indifferent to modernity as it grounds itself in past (ascribed and mystical) national glory. This belief does not generate much interest in the ethics of modernity as put forward in the rule of law (rational accountability for

Verhinderung der Vergangenheit: wehrhafte Demokratie in postkommunistischen Demokratien

Einige Demokratien, insbesondere die postkommunistischen Verfassungsstaaten, sind vergleichsweise wehrlos gegen gefuhlsmanipulative Politik, die verfassungsrechtliche Freiraume ausnutzt. Die verfassungsrechtlichen Grundlagen dieser Staaten sind nicht nur durch emotional-radikale populistische Politik gefahrdet, sondern auch durch Rassismus und Korruption. Obwohl es eher unwahrscheinlich ist, dass das demokratische System durch einen Missbrauch der demokratischen politischen Institutionen zerstort wird, besteht kein Zweifel, dass die Selbstschutzmechanismen der Demokratie vergleichsweise schwach sind.

Pluralism in Post-Communist Law

This paper discusses problems related to the incorporation of constitutional rule of law into a pluralistic legal system, primarily in post-communist Hungary. Normative pluralism was characteristic of state socialism. Is this pluralism going to shape the emerging constitution-driven law of post-communism? The paper concludes that although constitutional universalism brought a new dimension to law and in principle has helped to promote the centrality of law in the competitive world of normative orderings, it may in the long run remain an elitist tool, fundamentally ignored or circumvented by sub-legal forms of social interaction.