Vol. 15 No.8 (August 2005), pp.632-634

 

RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE, by Wojciech Sadurski.  Dordrecht, The Netherlands: Kluwer Academic Publishers, 2005. 377pp.  Hardcover. $199.00 / €150,00 / £104.00.  ISBN: 1-4020-3006-1.

 

Reviewed by Lynn M. Maurer, Department of Political Science, Southern Illinois University Edwardsville. Email: lmaurer@siue.edu

 

RIGHTS BEFORE COURTS is a well written account of the constitutional courts in Central Eastern Europe.  It is a comprehensive and comparative review of the constitutional courts that have developed in these new democracies.  One of the objectives of this review is to describe how the work will be seen “in light of the methodologies and approaches to the scholarly analysis or teaching of law and courts as applied by political scientists.”  The approach and methodology are appropriate for Wojciech Sadurski’s area of expertise, European legal and moral theory.  The typical political scientist would couch the study in theory, as does Sadurski.  A comparativist or other political scientist studying the role of this institution would stress data collection more than Sadurski does; this would include a section describing the interviews carried out with justices (if indeed they were) and the texts or opinions examined as data.  Last, his explanations and comments occasionally verge into normative theory more than would be permissible in our field. (While I may wish to call a case “bizarre” or a “fiasco,” accepted rules of social science keep me from doing so). Nonetheless, it is certainly an informative and comprehensive account and the political scientist that specializes in Central Eastern Europe will certainly be rewarded by a reading of this book.  It is current (which is most important in the development of institutions that spans little more than a decade).  It is rich with case studies that show various approaches to individual rights taken by the constitutional courts of these states.  It illustrates malleable institutional relations exclusive to democratizing countries. In these cases, opportunities present themselves for the legislative, executive, and judicial branches to exert their influence over each other.  Sadurski’s expertise in constitutionalism is evident, as he explores constitution building and theory on the one hand, and institutional relations and power put into practice on the other.  He also displays acute awareness of the consequences of these actions and decisions on the individual citizens.

 

Sadurski considers the effects of the past communist regimes (and ideology) on the constitutions and constitutional courts of the current CEE countries.  This is evident in areas such as socio-economic rights (which most countries felt they could not ignore in their current democracies, yet are not given as much weight as rights such as equality.)  As a comparativist, I would like to see the current regime type (degree of democracy or authoritarianism) taken more into account; certainly, the Court in Belarus’ authoritarian regime has been ignored by the executive in a way [*633] that would never be acceptable in a democratic country.  That is to say, the strong rule of law in Poland or the Czech Republic would restrict their courts from acting in a comparable manner.  However, a comparison of regime types and their relation to the courts may not have been Sadurski’s goal, and certainly his project is already sufficiently ambitious (in the good sense) to have provided him with quite a task in researching and writing this book.  Last, Sadurski has a good sense of the social and political cultural situation in each country and weaves the role of – for example, the Catholic Church, or the influence of a certain political party – into his explanations of the actions of the Constitutional Courts.

 

The Central Eastern European countries Sadurski includes in his study are Poland, Hungary, Czech Republic, Slovakia, Romania, Bulgaria, Slovenia, Croatia, Serbia-Montenegro, Macedonia, Bosnia, Albania, Latvia, Lithuania, Estonia, Russia, Belarus, Ukraine, and Moldova.  He excludes the other post-soviet states that are not regionally “Central Eastern Europe,” Azerbaijan, Armenia, and the five Central Asian states.  This is wise given that the later are much less (or not at all) democratic than the majority of the countries discussed, and thus, less comparable.  Examples are given from all of the states studied, though the book focuses most heavily on Poland and Hungary.

 

The book is divided into two sections.  The first examines the degree of legitimacy of the courts, as well as other basic trends in their development.  In Chapter 1, Sadurski explores the type of review established by the courts, which in most of the countries is ex-post review (of laws already passed).  His discussion of the tenure and selection of judges reveals the political consequences of life tenure versus limited terms, possible reelection or reappointment, and the manner of their selection.  Chapter 2 reveals that the courts do not have trouble with legitimacy; however, their establishment vis-a-vis the other institutions – particularly parliament – has been challenged at times.  All the CEE countries have opted for a “European model of abstract judicial review” which he traces to the “fundamental values underlying the model of review” rather than the geographic location (Europe).  Also in this chapter, Sadurski mentions that although the courts are often considered a defense for the minority against majoritarian tyranny, in practice there have been very few decisions made on the part of ethnic minority rights and even less, in defense of minority religions.  In Chapter 3, an examination of the review practiced by the courts shows that they have established their finality in the review process but –according to Sadurski – their power relations with the other institutions is far from established. Chapter 4 shows the courts as major actors in the law-making process and even “activist” among the courts of Poland, Hungary, Czech Republic, and Slovenia.

 

In Part II, the author attains his goal which is to give a descriptive overview of basic rights as interpreted by the CEE courts.  He begins with a chapter devoted to the role of judicial review in the protection of citizen rights (Chapter 5).  He explores a typology or “score card” of “rights-enhancing decisions” versus “rights-weakening decisions” through invalidation of or upholding the [*634] legislation.  Chapters 6 through 8 explore three areas of individual rights: Personal, Civil and Political Rights and Liberties (Chapter 6), Socio-Economic Rights (Chapter 7), and Equality and Minority Rights (Chapter 8).  These chapters are most informative.  In each aspect of the rights under question, the author begins with a theoretical consideration and then clearly gives examples of cases in which one or more CEE courts have dealt with the issue.  Whenever possible, he summarizes for each right the approaches taken by all constitutional courts in the CEE countries examined.  Some types of individual rights have not been dealt with much as of yet.  Sadurski’s strength as a scholar is his understanding of constitutions and democratic transitions and his ability to relate them to the judicial decisions made by the constitutional courts.  His knowledge of the movements and trends within the countries make us aware that judicial decisions are not made in a vacuum; this author seems particularly perceptive of both the environment in which decisions are made and the impact they will have upon society and the political system.  Although he sets out to make these descriptive chapters, his knowledge of the courts would lend itself easily to a more rigorous empirical examination (by empirical I do not mean statistical), and I suspect Sadurski would be successful at such an endeavor were he to undertake it.

 

Chapter 9 deals with a topic so important that it could also be placed among the beginning introductory chapters.  Entitled “Decommunization, Lustration, and Constitutional Continuity,” this chapter describes the degree to which each country has dealt with the communist leaders and deeds of the past.  They range from the Czech Republic’s harsh approach (banning a wide range of persons from public posts) to the most lenient models of Poland, Hungary, and Bulgaria.  Sadurski again displays his understanding of the effect of one regime type on the following regime.

 

After exploring Restrictions of Rights, Sadurski concludes by pondering the role of the CEE constitutional courts and of such courts in general.  I had hoped for a summary of the information he had presented throughout the book, particularly in Chapters 6 through 9.  Instead, he opts for a discussion of two themes presented earlier, legitimacy of the courts and the protection of rights.  He refers to his “score card” of Chapter 5 to draw conclusions.  As he maintains in his conclusions, constitutional courts in post-communist transitional (or newly-consolidated) states should be subjected to the same scrutiny as in established democratic states.  Sadurski has done so here in addressing the vast question of the role of the constitutional courts in the CEE post-communist countries. 

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© Copyright 2005 by the author, Lynn M. Maurer.