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The Rule of Law and Transition

Summary/Abstract: Following the collapse of communist regimes, the Central and Eastern European Countries faced an urgent task of building their own systems upon value-based principles. Some Western liberal theorists were of the opinion that the rule of law would spontaneously emerge from the ruins of communism, but they have been proved wrong by the circumstances and processes of strenuous overcoming of both inherited and new problems. The process of catching up with the requirements of the new era was slowed down primarily by ethnic cultural demands in heterogeneous societies. The model of Western liberal democracy, theoretically conceived as the rule of law, makes a possible, desirable and rational basis for analogy. Minimal abstract and theoretical contents of the model, its core or phenomenological constant consists of: (1) the rule of law, (2) indisputability of basic rights and liberties, and (3) the distribution of power. Having in mind that post-communist societies are burdened with inherited problems, pushed aside and left unsolved for decades, including economic poverty, cultural and national heterogeneity, lack of democratic culture, it still remains to be seen whether the model shaped through a long and slow evolutionary process can be applied in its approved form. Departure from the model seems to be inevitable, and it goes in two directions: (1) the need for an institutional framework of the rule of law demands efficiency, which itself requires certain concentration of power; (2) reasons for social insecurity and fear are curbed through the enlargement of the normative contents of the constitution in the form of institutionally guaranteed privileges and promises. Both changes are theoretically sustainable unless they jeopardize the core principles of the rule of law -- institutional limitations and control of government -- and if they are of limited duration.

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