The struggle for constitutional justice in post-Communist Europe

Book abstract:

In the former Communist states of Eastern Europe, one of the most important, and most difficult, aspects of the transition to democracy has been the establishment of constitutional justice and the rule of law. This wide ranging book attempts to chronicle and analyse the rise of constitutional courts in this rapidly changing region. In the first half of the 1990s, new constitutions for Eastern Europe were, with the help of many American and Western European advisors, being written and frequently revised, before being adopted and put into practice. Against the advice of most American experts, each country rejected the American judicial model, which lets the courts decide constitutional questions first, and instead created special tribunals for the major issues they foresaw looming ahead in their newly created constitutions. Judges were selected in part by parliaments and in part by the presidents of the new republics, often drawn from academia. In many cases the role was to assist parliaments and the president in doing their jobs: many were required, or at least permitted, to advise on pending legislation or interpret the constitution where it was vague. In the five countries chronicled in this book - Russia, Poland, Hungary, Bulgaria and Slovakia - constitutional courts have persevered to play a part in defining and implementing human rights and the rule of law.

Beginning with a brief history of the courts prior to 1989, Herman Schwartz draws on his expertise as a distinguished constitutional scholar and adviser to many of these countries to compare their jurisprudence with relevant American and Western European law. He explains how and why these courts have become so influential and also discusses their differences, and how the often dramatic conflicts of the post-Communist era have affected them. He examines their decisions, their successes and failures, and their contributions to keeping those in power within constitutional limits. Finally he offers suggestions for improving their effectiveness.

With a wealth of historical and other information this book will prove a rich yet accessible source for anyone interested in the ongoing struggles of post-Communist Europe.

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