Kaja Gadowska - Legal Change in Post-Communist States

This book began its life as a special issue of the journal Communist and Post-Communist Studies, designed and proposed by us, its coeditors Peter Solomon and Kaja Gadowska. In bringing this publication to fruition, we benefited immeasurably from professional, devoted and even inspired help of the journals managing editor Lucy Kerner. We are pleased to acknowledge her role in nurturing and improving the various contributions. We are also grateful to the editors of the journal for granting permission for the publication of the issues contents as a book.

The idea for the book came from Andreas Umland, who proposed publishing it in the distinguished series he edits at ibidem - Verlag, Soviet and Post-Soviet Politics and Society. The books editors and contributors readily accepted the proposal, agreeing that the subject of their special issuelegal change in post- communist states-- deserved the added visibility and coherence that the book form would provide.

Working with the publisher ibidem has also been a very positive experience, and we are grateful to its editor Valerie Lange for her role in improving individual chapters and seeing to the publication and marketing of the book.

Peter H. Solomon Jr., Kaja Gadowska
Munk School of Global Affairs, University of Toronto, Canada,
and Jagiellonian University, Krakow, Poland

Reformers had high hopes that the end of communism in Eastern Europe and the former Soviet Union would lead to significant improvements in legal institutions and the role of law in public administration. However, the cumulative experience of 25 years of legal change since communism has been mixed, marked by achievements and failures, advances and moves backward. This volume documents the nuances of this process and starts the process of explaining them. This introductory essay draws on the findings of the articles in this issue to explore the impact of three potential explanatory factors: regime type, international influences, and legal (or political) culture. Regime type matters, but allows for considerable variation within authoritarian and democratic states alike and the possibility of reversals. The influence of international organizations (like the European Union) is also far from predictable, especially once states have joined the organization. Finally, legal cultures and political traditions play a large role in explaining developments in individual countries, but there is nothing inevitable about their impact.

Keywords: Post-communist legal change, Legal reform, Authoritarian law, Democracy and judicial power, The European Union and legal reform, Legal culture and tradition

In the quarter century since the collapse of communist regimes in Eastern Europe and the USSR almost every country in the region has tried to reform its legal institutions and enhance the role of law in public administration. According to conventional wisdom, both democratization and the creation of market economies required the creation of law-based states (or Rechtsstaat), which assured that government officials (including politicians) would be subject to legal restraints, and that citizens could defend their rights and interests in impartial and effective courts (Linz and Stepan, 1996). Accordingly, most countries did make efforts to produce independent and empowered courts and police that served society (Seibert-Fohr, 2012; Kuhn, 2011; Solomon and Foglesong, 2000); and struggled to make public administration more rule-based and less corrupt (Inkina, 2018; Dmitrova, 2009; Meyer-Sahling, 2009; Gadowska, 2018). Before long it became clear that the goals of reformers were fulfilled only in part, in some countries more, others less, and that some achievements had proven short-lived and subject to reversal (Solomon, 2007, 2015b; Hendley, 2017). Differences emerged between authoritarian regimes in the post-Soviet space and democratic ones in central Europe that were part of the European Union. But events of recent years have shown that empowered and independent judiciaries could be threatened even in the countries that had apparently made successful legal transitionsHungary and Poland, for example (Bugaric, 2015; Bugaric and Ginsburg, 2016; von Bogdandy and Sonnevend, 2015; Scheppele, 2018).

The cumulative experience of post-communist legal change within Eastern Europe has turned out to be mixed, marked by achievements and failures, advances and moves backward. The challenge to be addressed in this special issue of Communist and Post-Communist Studies is determining and documenting the nuances of these developments and starting to explain them. The contributors to this issue are all scholars who pursue socio-legal research on Eastern European countriespolitical scientists and sociologistswho are also members of a new collaborative research network of scholars who share an interest in this subject. We, the co-editors, should stress that the papers are not the product of a conference or directed inquiry but represent the ongoing research of the several contributors. We are pleased that the topics cohere, and that the sum of them will likely prove greater than their parts.

The paper topics range across the region and focus on both the former Soviet Union and Eastern Europe proper. The topics fall nicely into two groupspapers that deal with legal institutions, especially courts but also police; and papers that address law and legal accountability in public administration, including efforts to fight corruption and complaint mechanisms. The extent to which legal reform has improved the accountability of government officials is one broad concern that unites all the papers, including those on legal institutions. Two of these papers deal at least in part with administrative justice (holding individual officials to account) and other two with the accountability of police and the role of supranational tribunals in holding domestic officials to account.

The authors of the articles share a concern with the role and impact on their findings of at least three potential explanatory factors: regime type, international influences, and legal (or political) culture. Most observers assume that the achievement of independent and empowered courts is easier in democratic than in authoritarian regimes. Probably so, but it may well be that democratic government is a necessary but insufficient condition. The impact of political competition also turns out to be variable (Finkel, 2008; Popova, 2012). Just what can be achieved within authoritarian states is another open question (Ginsburg and Moustafa, 2008; Solomon, 2015a). International influence, especially through the processes of linkage and leverage may make a difference (Levitsky and Way, 2006). A prime example is the impact of the European Union and its demands, whether addressed to would-be members or actual ones. It turns out, however, that there have been limits to the impact of the EU, whether in the shaping of legal institutions or the struggle with corruption (Kochenov, 2008; Gadowska, 2010; Boerzel et al., 2012; European Commission, 2016). Finally, as one country or another moves backward and counter-reforms prevail, observers increasingly turn to cultural explanations (Krygier, 1999; Kurkchiyan, 2003; Bobek, 2008). One country lacks a legal tradition or a strong role for law in public life, perhaps because informal relations trump formal institutions; another country has a long heritage of illiberal impulses, which facilitate attempts by leaders to curtail legal accountability.