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The Struggle for Constitutional Justice in Post-Communist Europe by Herman Schwartz (University of Chicago Press, 347 pages, $47.50) If you could cite only one index to measure how the rule of law is faring in post-communist Europe, what would it be? The growth of an independent bar? The passage of privatization laws? The writing of new constitutions? For Herman Schwartz, professor at the American University’s Washington College of Law, the new constitutional courts of the region are the harbingers of democratic change, or lack of it. His conclusion: “Almost all the courts in eastern Europe have been remarkably independent — astonishingly so in some cases — and quite ready to challenge and overturn important statutes, bills, and regulations. And most seem to have gotten away with it.” This book, part of a University of Chicago series on constitutionalism in Eastern Europe, is a must-read for those who follow international legal issues. Lively in prose style, tightly developed in argument line, there is not a dull moment in this ride across the recent legal history of five countries: Poland, Hungary, Russia, Bulgaria, and Slovakia. And the casualties by the side of the road — Belarus, Albania, and Kazakhstan — are described as well. The landscape of post-communist Europe is strewn with the detritus of legal systems hammered out in the Leninist model, essentially structures in which law was the realization of political action, and judges were state agents in building socialism. Private property, personal freedoms, and constitutional checks and balances had no place. The image of “social engineering” was an oft-used one, describing the mandate of legal officers. Schwartz chronicles the problems facing the emergence of a healthy legal culture in these countries: an almost nihilistic public attitude toward the law; no respect for judges, most of whom were low-ranking civil servants; endemic corruption; poor or nonexistent resources; communist bureaucrats that remain hangers-on in the new political systems; and the failure of economies to grow. He makes a valid point: Absent a market economy that creates wealth and jobs for people, modern rule of law is a dead issue. “And a vigorous constitutional court is the child of liberal democracy, and without that kind of polity, a constitutional court cannot function effectively.” If Air Mongolia or Air Georgia awarded frequent flier miles, Schwartz would be in the platinum kilometer club, for he has traversed the region for the last 15 years, sometimes on aircraft that would pass no international safety test, intensely consulting with courts, legislators, heads of state, and law professors on what shape the new constitutions and judiciaries might assume and with which consequences. The author opens with a brisk survey of the surprising fact for Americans that a variant of judicial review has deep roots in European soil, traceable to the French Revolution, but in more modern times to that genius, Hans Kelsen, the pre-eminent legal theorist of the just-past century. Kelsen worked in Austria in the 1920s and fled it for a teaching position at the University of California, Berkeley. It was he who devised the idea of the modern European constitutional tribunal, a judicial body separate from other courts that would treat constitutional questions solely. The Austrian court ruled on constitutional and federalist questions, plus electoral issues and accusations against high state officials, and constitutional cases referred to it by other courts. A leading German jurist, Helmut Steinberger, has perceptively identified the constitutional tribunals as “the only truly novel institution within the parliamentary systems of Western Europe.” Parenthetically, Schwartz flags the issue of upward referrals from other courts as a problem for the new constitutional tribunals of Central and Eastern Europe. Regular courts, including supreme courts, which Americans would consider to be appeals courts, are supposed to send cases with constitutional issues to the constitutional tribunals, but rarely do so. Why? The reasons may be jealousy of a different court, the timidity of lower bench judges, a desire not to make waves, or wanting to keep control of cases. Thus, the constitutional tribunals obtain most of their business from the executive and legislative branches of governments, and not from other courts. Schwartz, who ,once as a tenacious young law clerk, got the venerated Learned Hand to admit he had misunderstood the meaning of an arcanely written law, goes for the jugular early on the matter of social rights. The basic issue: most Eastern European constitutions, reflecting the historical experiences of their people, include not only standard bill-of-rights provisions, but also rights to education, health care, a clean environment, culture, and the like. The standard American argument against including such rights in constitutions is that they are not justiciable. But the amazing thing is that Eastern European constitutional courts are trying to take them seriously, as in the decision of the Polish Constitutional Tribunal to strike down a provision that sharply limited the periods for which benefits can be extended to unemployed workers who are the sole support of their family, and a decision of the Hungarian Constitutional Court, which disallowed a government austerity plan abolishing family allowances and benefits to which the workers had contributed. Another striking feature of the new courts is the absence to date of many individual human and political rights cases, including cases involving disenfranchised minorities, like the Roma (gypsy) populations scattered throughout the region. I suspect this will change as minority groups become more court-smart and as the decisions of the European Court of Human Rights in Strasbourg become more numerous. Conversely, “health care, minimum subsistence, the right to work, a healthy environment, social security, and retirement benefits have all been provided to people who brought the deprivation of such basic necessities to the constitutional courts.” This is in sharp contrast to American courts, which would not touch such “positive rights” issues with a 10-foot pole. Much of the book’s center section is given to case studies of five constitutional tribunals — Poland, a success story; Hungary, where the court has earned the respect of the people for deciding numerous questions brought to it by individual applicants; Russia, where the jury is still out on the court’s place in evolving society; Bulgaria, where against all odds, the court issued some courageous decisions against one of the most communist of all new governments; and Slovakia, where the court’s life at times resembled a hockey match, but in which it body-checked the demagogue Vladimir Meciar and emerged intact. Both the Czech and Romanian courts deserve separate sections as well, although the reasons for their relegation to the list of less-successful constitutional tribunals is woven in the accounts of other courts. “Not bad, not bad at all,” is how an observer might characterize the courts’ achievements after the first hectic decade of their existence. The distinguished Polish jurist, Lech Garlicki, has described the energies of the Polish Constitutional Tribunal as being like a continual tennis match with the legislative and executive branches of government. In this, most of the new courts have fared fairly well. Their assets include many judges who were former law professors who taught or studied in Europe or the United States and who had John Marshall-like instincts for preserving their courts and establishing their places in an evolving new order. The liabilities include inadequate resources, low salaries, a lack of clerks and support personnel, an absence of court security, and even a profound absence of books and records. I remember a discussion with some judges in Central Asia. At issue was the wording of a Russian law; three judges had differing versions, depending on when they had studied in Moscow and returned home with different versions of the relevant laws. Schwartz has several practical suggestions to improve the workings of the constitutional tribunals. These include staggering terms, providing greater individual access to courts through petitions, and limiting the subject matter to exclude constitutional tribunals from being the judicial overseers of parliamentary and presidential elections. Also, constitutional tribunals should abandon their present role of being legal advisers to presidents and parliaments on theoretical aspects of constitutional issues. Let the executive and legislative branches find their own bright legal counsel, and let courts be courts. And judges should stay out of discussing pending cases on national television, as happened with the Russian Supreme Court in 1993 when it walked into a Yeltsin-Duma buzzsaw, took sides, and was promptly dissolved by an enraged Russian president. This remarkable book is far more than a by-the-numbers run-through of the schematic diagrams of several emerging constitutional tribunals. Herman Schwartz has argued cases before the U.S. Supreme Court, is a prolific author and editor, whose books include “Packing the Courts” and “The Burger Years.” An honors graduate of Harvard University and editor of The Harvard Law Review, he eschewed the traditional route of signing on with a major law firm to enter into what is now known as public interest law, advocacy for the poor and the disenfranchised, Jewish issues, and the plight of prisoners. He was one of the defense counsels in the Attica prison cases, and later was counsel to a Senate committee. Presently, in addition to a busy teaching role, he is concentrating on advocacy for several groups marginal to American political life. A thoughtful foreword by a distinguished former chief judge of the U.S. Court of Appeals for the District of Columbia, now a member of the International Criminal Tribunal, helps set the book in an East-West context. Patricia Wald notes the irony “in the fact that while the United States currently enjoys unparalleled economic prosperity, our Supreme Court retreats from the forward role it has played in the past in defining and implementing human rights,” causing the new courts of Eastern Europe to look more toward Germany and the European Court of Human Rights for relevant case law. Wald concludes, “Stability and consistency are certainly virtues for a high court, but sometimes preoccupation with deference to the organs of majoritarian rule runs the risk of failing to serve the felt needs of the people,” an issue facing many Eastern European jurists in these formative years of their constitutional courts. Frederick Quinn is the author of “The Federalist Papers Reader,” a widely used text, “Democracy at Dawn, Notes From Poland and Points East,” a “Times” Literary Supplement International Book of the Year, “Human Rights and You,” disseminated in Eastern Europe in Russian as a bench book for judges, and, most recently, “The French Overseas Empire.” He worked closely with Chief Justice Warren E. Burger on the Bicentennial of the U.S. Constitution and presently is finishing a book on the federal judiciary, “Courthouse at Indian Creek.”

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