Four Visions of Post-Communist Law

Martin Krygier

Eugene Kamenka was a distinguished historian of ideas, and my primary connection with him-as a doctoral student in his Unit under his supervision-was in that field. However, while I hope it is not totally empty of ideas, this article has nothing to do with their history. Still it is concerned with two areas of deep interest which we shared, and about which he taught me much. The first interest is politico-geographical: Eugene’s life was profoundly affected by the Bolshevik Revolution, and shaped by its aftermath. That fed his lifelong interest in Marxism, in communism, and-in his last years-in post-communism. routes proportions gardees and indirectly, the same is true of me. Secondly, my first intellectual connection with Eugene had to do not with history of ideas but with law, which was one of his dominant interests during his life with Alice Tay. Eugene taught me jurisprudence, in fact, before he introduced me to the history of ideas. Among the things he taught, and about which he and Alice wrote extensively, was that legal orders are not simple or neutral instruments available for use and deployment whatever one’s chosen purposes. Rather, particular orders at particular times embody particular logics, particular ‘explicit or implicit ideologies, , . . ways of viewing both law and the world,’l which are congenial to some purposes and not others. Moreover, since legal orders often come simultaneously to embody several logics in tension with each other, some valued purposes might be achievable only at the expense of others. This can lead to tension, strain, perhaps crisis, in the underpinnings of legal orders, and even in the practice of the law itself. In the contemporary world, Kamenka feared, the logic of many demands upon and within the law threatened the logic of the rule of law. And he was deeply attached to the rule of law.

For many purposes, Kamenka argued, it is as important to attend to these underlying logics and ideologies as it is to understand the particulars of the explicit law. That notion is as important and as often ignored as it appears simple to state. This article is an attempt to explore its implications in a particular setting: that of post- communist Poland. My normative basis, like Eugene’s, is concern for the rule of law. While the story I have to tell is quite specific in its details, its implications-factual and normative-are, I believe, more general.

In 1989 Poland astonished the world, rightly and not for the first time. Negotiations between the Communist leadership and representatives of Solidarity led to elections, defeat of the Communists, and a non-communist government. Today that all seems a long time ago. It is too, socio-psychologically if not in years. Then it seemed clear what people wanted, if less clear that they would achieve it. Now nothing is very clear at all, including the role that law is to play in the post-communist world.

The problem of the fate of law after communism is not just a local issue. For it raises many issues of general theoretical importance. These include questions about the enduring significance of past social and political traditions, structures, ways of thought and of action; about the interrelationships between social, economic, political and legal forces and structures; and about what room for manoeuvre is left to those who seek to exercise choice and craftsmanship2 in political and legal affairs.

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Elsewhere Adam Czarnota and I have begun to examine a number of these questions? Here I wish merely to present some material and pose some questions about one aspect of this complex subject-the attitudes of elites, particularly political elites.

I interviewed a number of leading political and legal figures in Poland in December 1992 and January 1993. What follows is primarily based on four of these interviews. These do not purport to be a statistically representative-or in any other way scientific-sample. In many respects, moreover, they are dated, since they were conducted (and this article first written) before the results of the October 1993 elections, which for the moment have dramatically changed the configuration of Polish parliamentary life. Nevertheless, I have chosen them to illustrate the logics of certain influential conceptions of how Poland should develop, logics which have significant and significantly different implications for law. I believe these conceptions to be widespread among political elites, to have constituencies, and to be likely to have consequences. There are other logics in play, and other interviews would reveal them. For my general purposes, however, and also as representatives of conceptions which are neither marginal nor ephemeral, these will serve.

Of course, political elites are not the only, and often not the most important, actors to affect the law. The ways in which citizens do and do not weave law into their lives are complex and variable, and they are processes over which elites rarely have direct control. Nevertheless, in the flux and uncertainty-the essential shapelessness-of post-communist transition, political elites have a particular centrality.

Among the residues of communism-a pervasive and centralised state, weak legal traditions, and weak civil society-what is being undertaken, in Poland at least, is a social revolution stimulated and in large part directed from above. There is a struggle for control of the state, and-at least among some of the contestants-for control over the society as well. At the moment there is very little consensus over the desirable shape of either. The revolution is unprecedented and no one has blueprints. However, many people have aspirations. I will sketch four different sorts of aspirations which influence the behaviour of elites, and draw some conclusions about their likely impact on the role of law in Poland.

1 Establishing the Rule of Law

When the communist empire collapsed, it was commonly believed that it had been upended by a liberal revolution occurring throughout the post-communist world; that, as Timothy Garton Ash put it:

In politics they are all saying: There is no ‘socialist democracy’, there is only democracy. And by democracy they mean multi-party, parliamentary democracy as practiced in contemporary Western, Northern, and Southern Europe. They are all saying: There is no ‘socialist legality’, there is only legality. And by that they mean the rule of law, guaranteed by the constitutionally anchored independence of the j~diciary.~

And they were saying something like that. In 1989, the ‘Standpoint Regarding Political Reforms,’ the first part of the ‘Round Table Agreement’ which came out of the negotiations between the Communists and Solidarity, proclaimed:

Independence of the courts of law and of the judiciary has a fundamental significance for the functioning of the state in accordance with the law, and for the protection of citizens’ rights and interests.5 Commenting on this passage and other similar developments in east central

Europe, Grazyna Skapska observed that:

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To establish the rule of law was ... one of the most important objectives of all those round- table agreements that marked the Great Change occurring nowadays. Apparently it was the rule of law in its ‘usual’ liberal meaning, including subordination of all political authorities and state officials to the law, setting limitations to their power, guaranteeing civil rights and liberties and the principles of due process. The stress, next to the separation of powers, was put on the independence of the judiciary, on the nonpolitical character of courts, and on the judicial control of governmental decisiom6 It was clear already then that this enthusiasm for liberal democratic values and the

rule of law had, as it were, a primarily negative source and ~harac te r .~ Communism had, by negative example, been a fine teacher of the virtues of liberal democracy, and for those interested in law, of the rule of law. Indeed, it appears to have propagated attachment to liberal democracy among its own citizens more successfully than many liberal democracies have managed among their own. For Communist regimes had opposed in principle, and actively assaulted, all the core liberal values: privacy, freedom, rights, civil society, markets, and the rule of law. The response of millions of subjects of communist regimes-in Poland particularly and apparently overwhelmingly -was a broad if unspecific attachment to those values, as the contrary of communist values-rather than a positive, programmatic liberalism.

To say that this sort of liberalism was negative in character, is not to say that it was unimportant. Communism sowed deep commitment to liberal democratic values in many people, and it also spawned bearers of negative anti-totalitarian and anti- authoritarian attitudes and beliefs-negative commitments which may already have gelled into negative traditions-according to which it is important to institutionalise restraint on power, and law is an important means of doing so.

There were, however, other reasons to hate communism, and not all of them have much to do with democracy and the rule of law. Moreover, even if everyone shared such commitments, the job could not be easy. Many of the states in the region had state-oriented political traditions which stretched back a very long way. In those states, including Russia and all the states which had been under its sway, law had never counted for a great deal. To the extent that it did count, it did so as a repressive or executive instrument of central power. It was not a relatively stable frame for social relations, a means for allocating and enforcing individual and group rights, and certainly not an institutionalised form of restraint on central power.8 Nor was it considered appropriate that it should be any of these things. Moreover, in such states, law was not traditionally deeply embedded in social consciousness. All of these states endured the War and forty odd years of communist rule, which accentuated non-and- anti-law traditions where they already existed and imposed them where they had not, or where they had faced legal competition.

Thus the soil on which post-communist law was to be built was fairly-though not uniformly-barren. Moreover, it had been laid waste by the collapse of communist economies; many unpleasant, deformed, and tenacious growths had taken root there in the preceding forty years; and the new cultivators have had many things to do other than tend to the planting and nurturing of legal institutions.

All of this is true of Poland. Poland’s pre-communist experience of law was mixed, but even a people as devoted to its past as the Poles has to dig pretty deep to find strong liberal democratic roots. Democracy was precocious but not long-lived in Polish history, and indigenous legal traditions have been diluted, if not overwhelmed by over 120 years of partition between Prussia, Russia and Austria, from 1795 to 1918. During that time Poland did not exist as a state and all law was imposed law. Independent Poland lasted merely twenty one years, became increasingly illiberal and was not democratic for long either. Some notable legal codes were drafted and adopted in the interwar period, and some of them have returned or never left, but in the succeeding 50

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years until 1989, the source of law was fully and then mixedly alien and imposed. For these and other reasons, legality is not a central tradition either in popular consciousness or in the affairs of state.

In these circumstances, Poland has come to face the challenge of post-communism. There are old institutions and laws that no one wants, new ones that no one has. There are many people whom many people hate, and many more that they distrust. There are scores to settle, reputations to destroy and reputations to make. There are pathologically distorted economies to transform, and there are societies which everyone wants restored to health. However, not everyone understands health in the same way. It should not be surprising that establishing the rule of law is not proving to be a picnic.

Among the first constitutional amendments proposed by the Mazowiecki government after it came to power in 1989, and passed by the Sejm [Parliament], was a new Article 1, which declared that ‘the Polish Republic is a democratic law-governed state.’ This of course contradicted the principle of the primacy of the Communist Party which had been written into the Communist constitution. It also promised more broadly that politics would be subordinated to law.

Among the people I interviewed, there was some controversy whether it was appropriate to make such a declaration when it was not yet true, but no one doubted that it would be nice if it became true. Commitment to the rule of law was an article of faith shared by virtually everyone with whom I spoke. Moreover, most people seemed to have, at least at first sight and in broad outline, many of the same things in mind when using the Polish phrase closest to rule of law: rzady prawa. Politics should be subordinate to law, law should be relatively clear and stable, legal institutions- particularly the courts-should be independent of political interference. Moreover, whatever lapses there have been, whatever political and administrative pressures have been sporadically applied to the legal order, there is no systematic pressure of this sort. There is no principled basis for this sort of pressure, as there was under communism. Indeed, because of the example of communism there is principled opposition to such pressure. And there is no systematic political pressure in practice either. There are religious pressures, though, and they have a principled (and institutionalised) base. But there are counter pressures as well.

There is some legislative effort directed at increasing the significance of law, though the Sejm is notorious for the length of time anything takes to pass through it. Despite volumes of reports, and continuing Constitutional Commissions in both the Sejm and the Senate, a new Constitution is not imminent. On the other hand, a substantial ‘little constitution’-in the form of an amendment to the existing one-was adopted in October 1992. It deals with the separate competences of Parliament, the President, and the Government, and has-apparently unknown to many parliamentarians who voted for it-constitutionalised a separation of powers. In January this year, Bill of Rights proposals have been placed before the Sejm, the most important emanating from the President’s Chancellery. They will be debated for some time to come.

There are also institutions. In the dying years of the communist regime, a number of institutions were created which have some role as independent overseers of government. The best known and most popular is the Ombudsman, an office whose first incumbent, Professor Ewa Letowska, has made a remarkable impression on the country. Her successor, Professor Tadeusz Zielinski, is also able, independent and active. The Highest Administrative Court has considerable respect as an independent review body. There is also a Constitutional Tribunal, which is cautiously evolving a jurisprudence of judicial re vie^,^ though at present it is hampered by certain

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institutional weaknesses and by the fact that the Sejm can overturn its decision by a two thirds majority.1° There are lawyers, legal functionaries, legal academics, citizens committed to legality and the restraint of power by law; and their influence has been real and significant. Nevertheless, as such people are quick to admit, it has not been without challenge.

Among the problems which most concerned those committed to the rule of law were both internal legal weaknesses and broader social ones. The former include incompetence and venality of legal officials, lack of a strong legal culture among them, lack of adequate legislation, and poor draftsmanship. A number of my informants noted a lack of a sense for procedure, pervasive among political elites and not unknown among judicial ones. They also noted a governmental impatience with legal restraint, which some attributed to a lingering Bolshevik mentality which appears to infect those whose hands touch the levers of state.

More broadly, Poles are famous for ‘living around the law’-in Jane Curry’s phrase-and it is not obvious that that has changed or that it quickly will. Professor Letowska viewed her job as in large part an exercise in public education about the importance of legality, and she was a remarkable success. Though she resigned some time ago, she remains one of the most popular public figures in Poland. This success had to do partly with the surprise people (and also, as she and others told me, the Communist government which appointed her) felt to discover a public official prepared to independently investigate and criticise other public officials, at the behest of individuals. She was the first to try, and she insists that there is an enormous amount left to do, both by way of activity at the centre and changing consciousness among legal officials and the wider population.

At the moment, then, there is good will toward the rule of law and some distinguished legal professionals, journalists, politicians, and citizens committed to it. But like so much else in the new Poland, the legal order is in sfutu nuscendi. It has not taken shape, nor is it clear what shape it will ultimately take. That will depend on many factors, both legal and social. In significant part it will depend on the behaviour of political elites: what forces come to dominate the political scene, what attitudes they manifest to law, what they fight over, the way they fight, and what use they try to make of law. What is clear is that their struggles will not merely be for victory within an agreed or presupposed institutional framework, but over the nature and shape of that framework as well. What is not clear is how central a place the rule of law will play in that framework.

We simply do not know whether the rule of law can be built in post-communist societies. The problems are great, there are strong and unsympathetic traditions, and some of the social foundations are unpromising. Not all, however, for as we have seen, communism taught powerful negative lessons. Precisely what lessons, to whom, and how powerfully, remains to be seen.

2 Saving Poland’s Soul

‘It is not important whether there will be capitalism in Poland, it is not important whether there will be welfare-the most important thing is that Poland should be catholic.’ (Henryk Goryszewski (Member of ZChN [Christian Unity Party], Vice-premier of Poland) Wspolczesna Gateta, 1 February, 1993)

The Roman Catholic Church is a hugely important and powerful institution in Poland. Indeed it is the only institution about which one can be confident that it will be much the same in aims, personnel, and ambitions in, say, five years. That combination of institutional stability with a virtual monopoly over religion in Poland is important to

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keep in mind. It means that what elsewhere might be abstract discussions of the place of ethical and religious values in political life have an institutional subtext in Poland: they are at least in large part about the place of the Church and the Church’s values in political and social life.

Asked about the Church’s exemption from tax, the Primate Cardinal Glemp replied, ‘one should look at other institutions which serve the state, such as the Sejm, Senate, army. And if we similarly count the Church as one of the institutions serving the state, then this Church lives off charity.’” When the Polish President introduced a proposed Bill of Rights into Parliament in 1993, a spokesman for the main Church party said that they could not accept a provision which “legalises the Stalinist principle of the separation of Church and state,’ which would cause the removal of the Church and religion from public life.’12 In 1993 and not for the first time, when the Ombudsman took the legality of a law mandating religious instruction in schools to the Constitutional Tribunal, nearly 80 parliamentarians from several parties called for his dismissal. Similar calls had occurred when he objected to a Doctors’ Code of Ethics which forbade abortion except in cases of rape or threat to a mother’s life, in contradiction to the then valid law allowing abortion.

Over ninety percent of Poles are at least nominally Catholic, Churches dot the landscape, the Polish Pope is the country’s most popular public figure, and the Church emerged from Communism with its authority and prestige enormously high. It successfully remained independent of the Communist authorities, and it won massively in its competition with them for the hearts and minds of Poles. This and its institutional strength made it a welcome and powerful collaborator with the anti-communist opposition. Again, like liberal democracy but with immeasurably stronger historical and cultural roots, the prestige of the Church was boosted by what it opposed. Currently this prestige has suffered because of its energetic interventions in public affairs. Most dramatically, the 1993 parliamentary elections unexpectedly eliminated the explicitly Christian parties from the parliament. Nevertheless, the Church remains a mighty force to be reckoned with, and all parties do reckon with it. It clearly is interested in influencing the moral and social climate of Poland and behaviour of Poles, through law among other means. This has been manifest in provisions making religious education compulsory in schools,13 in the law banning abortions which came into force in 1993, in its support for the Concordat negotiated between the Suchocka government and the Vatican, and in a provision of a law on radio and television, requiring respect for Christian values. Of that more below.

While almost all members of Parliament are Catholic, some whom I interviewed were Catholic members of Parliament. Prominent among these was Alicia Grzeskowiak, professor of law, then vice-marshal of the Senate, past-Chairperson of the Senate’s Constitutional Commission, publicly and comprehensively devout. When I visited her in her office in the Polish Senate, I sat facing a crucifix. She faced a photograph of herself with the Pope. She is middle aged, primly attractive, coolly polite, and possessed of a steely intelligence which manifests no doubt. Her answers to questions were clipped, clear, and considered. I never heard her exhibit anything but scorn for views that contradicted her own.

Apart from being a Catholic, a large part of Senator Grzeskowiak’s persona was her lawyerliness. She was proud of the work of her Commission, volumes of which she gave me and took me through. She insisted that the rule of law is absolutely necessary. She knows its elements and has written a book on the maxim nullum crimen sine lege. The rule of law, she insisted, is a central element of democratic government.

But I am not a positivist. That means that if we speak in post-communist societies of the rule of law, then we must decide what in this form we are sanctioning. Because if it is law created, written by a free democratic parliament, uncontaminated by the communist system of

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thinking-this will take generations. If we mean by the rule of law the field of which is designated by the old communist law, as in Poland, then 1 am very sorry. That is no longer rule of law but lawlessness, for that law is not law in my opinion since it is contrary to certain values. Law is not merely the letter of the law but its content and the content must be consistent with our inborn human rights and certain values. If that does not exist, then it is not law. If today the Ombudsman takes the side of post-communist laws and says he is for the rule of law, then I cannot agree to this. Because he first has to check whether that law infringes human rights14 ... So, rule of law in post-communist countries is rule of the old law and I cannot agree to that.15 There are many views on what to do about old communist law, as there are about

what to do with old communists. Grzeskowiak did not advocate nihilism but vigorous legislative action with regard to the former, and decommunisation (banning of higher communist office-holders from public positions for a period) and lustration (exposing alleged former agents of the secret police) with regard to the latter. Though many, particularly lawyers, vehemently disagree, she believed that this could done while maintaining respect for legal values and human rights. She had no doubt at all that it must be done.

While I was in Poland, the Sejm and Senate passed the law regulating radio and television. The most controversial provision in the law was that requiring ‘respect for Christian values.’ Opponents pointed above all to the lack of definition of this clause and to its breadth. Against suggestions that this was a shorthand for universal values, they pointed to the depth and bitterness of controversy over such laws as those mandating religious education in schools and forbidding abortion. It certainly appeared that proponents of Christian values considered these values and nothing less to be at stake in these controversies. There were many who feared that this clause would acquire definition according to pressure put by the Church and its political representatives: on the Council which was to be formed to judge on this matter, and more generally on radio and television stations, producers, and journalists. After all, if the Primate judged a program as lacking in respect for Christian values, he might be considered to have a certain authority in the area. According to critics, while the legal meaning of this clause was quite unclear, its political meaning was perfectly clear.

I asked Senator Grzeskowiak-who had voted for the amendments which introduced it-about this clause:

’Christian values’ have a universal character: What is a person, his good. I would very much want television programs to respect these universal values ... that there not be programs which oppose these values ... They don’t have to propagate these values-because that would be intolerance-but they cannot infringe them ... offend them. They must respect them. I don’t want such programs which do not respect what have become values, such as the human good; the state as a community ... the state is the medium of the good of all citizens. I asked about rule of law values: precision, non-retroactivity, etc. Senator

Grzeskowiak responded that they were all values that she had put into her constitutional project for the Senate Constitutional Committee. So I went on, ‘If someone were to say, for example about the clause on Christian values, that it is so open and imprecise and therefore in contradiction to rule of law values, what would be your response?’ Grzeskowiak replied:

Law makes use of many conceptions which require interpretation. Not all conceptions are strictly defined ... Of course we can throw all these conceptions which require evaluation out of the law. Christian values are in a similar position ... Otherwise we would have to adopt a similar standard and throw out all conceptions which require evaluation. So this accusation cannot only be dragged out about Christian values ... There is a problem in relation to certain areas of law such as criminal law, in which there is the principle nullum crimen sine lege, and law must be stricta, ceria, scripta and here if we were to introduce into the criminal law certain such conceptions then we would have to somehow define the concept. However if we want to

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throw out from the whole system of law all such provisions, then I will believe that it is here not a question of elimination or criticism of Christian values but of improvement of the legal system overall. Otherwise you merely use this argument for particular things not wanted on ideological grounds . . . There is also a clause that programs not be contrary to Polish ‘reasons of state.’ Why isn’t anyone upset about that. Do you know what Polish ‘reasons of state’ are? [MK ‘No’] Then why is everyone upset about Christian values which are in us because I have intuition, an inborn sentiment of justice. I have that in me. Everyone of us knows: for good, good; for evil, evil ... We have those inborn sentiments, don’t we? Similarly I have inborn sentiments of good ... Values are easier to define [than Polish reasons of state]. ‘Reasons of state’ relate to political groups. This is dangerous. Christian values, on the other hand, are universal. The person and his good. Certain people identify Christian values with religious values in the sense ...p articular prayers, in our Catholic religion. But this is a very broad conception. Christian values integrate the whole of Europe in its whole culture. T h i s theme of the universality of Christian values was taken u p b y Stefan

Niesolowski, one of the leading figures in the major Catholic party a t that time, the Z C H N (Christian Nationalist Alliance), then a partner in the governing coalition.16 He too supported the rule of law. He emphasised that law was necessary for the rebuilding of the state, f o r securing the durability of democracy, for securing the economic processes which have been put in train, for developing a legal culture in the society. What was necessary was a feeling that Poland is really a law-governed state where the law is respected. This latter he considered ‘an enormously difficult process, long and arduous. We have a society used to getting around the law. The Communists, as we know used the law as a political instrument. Lenin’s famous doctrine, that what serves the Communist Party is just, prostituted law.’ Of the rule of law, in particular, he emphasised:

respect for human rights, that those innocent of a crime cannot be punished, that people can claim their rights, that the state is not always right-unlike under communism where in a conflict with the state a citizen always lost, and reasons of state were treated as reasons of the communists. It must be thus: that the state might not be right. That law must be the result of an arduous legislative program, where the law must be respected, and all the formalities conformed with ... whether it supports or goes against the interests of a particular political group or interest. Law must be above politics-that is hard, very hard ... Enormously important is an apolitical judiciary, police. That is completely new. Under the communists it was the opposite. These were the institutions which were most extremely communised. Here it must be the reverse.17

Given his firmness about the separation between law and politics, I asked him about law and other values:

You mean morality? I think that law depends on an axiology. There is a positivist attitude that ethics comes from law, that law is, as it were, prior. This has to do with the Enlightenment, with the French Revolution-that the people assembled can receive orders from no one, since it is the highest form ... that parliament is the root of morality. I do not share this opinion. For me the root of morality is God. Law must be based on ethics. That means: law results from ethics and not ethics from law.

This is a great conflict in Poland ... Is the will of the people primary or are certain ethical principles primary which people are not permitted to change ... I as a representative of a Christian party represent the view that the principles of morality are eternal, unchanging, and people are not permitted to change them. We have to adjust law to them. And they are in principle not just Christian. For principles such as the Ten Commandments figure in many religions. They are universal principles ... In Poland, of course, they will function as Christian principles, but I consider them more universal ... No person can change the Natural Law, the law of the Ten Commandments . . . There were such attempts in history, but they have always ended in tragedy. [He discusses the Nazis, and mentions that its Parliament was prostituted] But even if it had not been, one can imagine a democratically elected parliament

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which passes laws which are contrary to the principles of the Ten Commandments, take abortion for example. This is a dramatic case, where democratically elected parliaments pass laws on abortion.18 You can also imagine cases where democratic parliaments pass other discriminatory laws ... I will always stand on the side of Natural Law, on the side of unchanging laws. I asked again the obvious question about the compatibility between the attempt to

write such large substantive conceptions into the law and the precision required by the rule of law, as in the law on radio and television:

Yes there is a certain difficulty. But that difficulty is not only with Christian values but generally with the definition of certain unmeasurable conceptions: democracy, tolerance, anti-Semitism, racism ... In Polish law there is a crime-Nazi propaganda. More or less we understand, more or less we all agree. But yes there is a grey area ... It is a real difficulty which I acknowledge _.. If you put certain general values into law, and democracy is such a value, for example you ban pornography, then there is a problem in definition. If you then write in something which not everyone agrees to-like Christian values-then there are further arguments. They do not attack the values directly but indirectly by saying that they are imprecise, uncertain. And this does create a certain difficulty. This is a real difficulty. This Act of which you spoke in my opinion will require certain practical expression or regulations like other Acts which regulate it in detail. Such regulations are often more important than the Act itself _.. But I agree. I acknowledge this difficulty. But otherwise it would be difficult to protect the functioning of democratic institutions, for example dignity is protected by law. One also speaks of certain provisions about human rights, for example ... There are very many similar provisions. I would not distinguish this particular clause. I have no reason to doubt that Senator Grzeskowiak and Mr Niesolowski take law

seriously and feel respect for their version of the rule of law. I also see no reason to doubt that, given any conflict between what they conceived to be the demands of their faith and the integrity and values of an autonomous legal order, they would opt for the former. That is the logic of their position and the substantive commitments which underpin it, and it can cut against the logic of the rule of law. However these are not the only logics available in Polish political circles, and they are not the only ones which sit ambivalently together.

3 A Strong Leader and a Strong State

A n ex-Prime Minister of Poland, Jan Olszewski-a distinguished and courageous lawyer during martial law-said while in office, ‘we shouldn’t exaggerate with this rule of law.’ He was dismissed from office after what some allege to be an attempted coup against the President, Lech Walesa and after an extraordinary dumping in Parliament, by his Minister of Internal Affairs, of former secret police documents which allegedly named sixty odd leading political figures-including the President- as ex-agents or informers of the secret police. Legal considerations do not appear to have been uppermost among those who orchestrated this affair.

Power is attractive to many people, in Poland and elsewhere. In Poland, there are many who believe the country needs a bit more of it. Examples of Polish unruliness are easy to find or manufacture: nobles vetoing the country into partition in the eighteenth century, Pilsudski restoring order from alleged chaos after 1926, the disorderly balagan (mess) in so many spheres of life, the ‘war at the top’ between Lech Walesa and his erstwhile aHies, and the splintering of Solidarity into rancorous enmity, after 1990. Walesa evokes and plays on some of these desires for strong authority, but (to the relief of many) he usually does not follow through. He talks loudly and carries a little stick. People who want to see a bigger one wielded are often attracted to the KPN [Confederation for an Independent Poland] and its forceful leader, Leszek Moczulski.

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I interviewed Miroslaw Lewandowski, a member of the Party specially concerned with law. Before becoming a member of the Sejm, he had taught civil law at the Jagiellonian University, Cracow. Speaking on his own behalf and that of his Party, he affirmed the importance of the rule of law.

We do not treat the question of the rule of law instrumentally. It is not, as often happens today in Poland, that you speak of the rule of law when it is convenient for the government coalition, and when it is inconvenient you stress that the law is communist, coming from that evil period and that as a result it can be ignored ... We believe that if you are talking of the conditions which have to be created, for example for business, both domestic and western, for that business it is not at all good that there be discretionary tax exemptions, as the government claims, or that in this country there was such a situation that by giving bribes one can fix anything. No. For business, as for democracy, as for liberty, law is a certain institutional guarantee for the existence of all of these values. If there is no rule of law, if there is discretion, breaking of the law, legal chaos-either in the making of law or in its application-then there will not be in this country either capitalism, or freedom or democracy. That is our point of view.lg

Lewandowski complained of terrible legal chaos in contemporary Poland- ‘nightmarish, unimaginable; things that don’t even enter one’s head in any normal state’-both in the quality of the laws made and in their application. Quality suffered from the fact that so much of the law was communist, and also by the fact that parliament made laws badly, amateurishly, hurriedly, ‘on the knee.’ He recommended an independent codification commission, staffed by legal experts (not, he complained, geologists as occurs today) as before the War,20 which the parliament could pass or reject totally but with whose details it could not meddle. Application was in bad shape because the legal infrastructure-courts, procuracy, police-were so badly paid that they took bribes or left.

I asked him about the constitution, which had been heavily amended but not yet replaced. He argued that while Poland needed a new constitution, the existing parliament was not in a state to pass it. So long as the governing coalition was weak and could fall any time, all the players would act instrumentally. New elections were necessary in order to form a strong stable majority, which could quickly realise its vision of the political system. Unprompted, he continued:

And there is another alternative. Perhaps systemic change will have to be introduced in another way. Perhaps it is necessary that a new President, taking power after the present President, one with a strong personality, and on the basis of constitutional and unconstitutional means which are available to him, simply through a certain constitutional practice, impose a presidential system on this country. This is also possible, and it may be that it is in some sense the only road. I am not talking about throwing over the existing constitution, but having a strong personality and character, and playing skilfully with existing instruments of power-both those in writing and some unwritten ones which he can exploit in certain ways-simply can impose a presidential system on this country.

[Q. M.K.] Doesn’t this endanger the rule of law?

[A. Lewandowski][Pause] You know, sir, that is a question. Though in the area of the political system, if the President played such a game to strengthen the authority of the state, to introduce a presidential system, in my opinion this would not overstep the narrow boundary between law and lawlessness because in this conception it would be making order out of chaos-would it not? Making order with unconventional means, rather than breaking a legal order, because such an order does not exist in the political system in Poland.

[Q. M.K.] But you of course know that often a leader says that his task is to make order out of chaos and there have of course been certain dangers . . . [A. Lewandowski] No, you know that here we are approaching a moment where your fears are known and so are my reactions to them. So we would have to conduct a more general

114 Four Visions of Post-Communist Law

discussion of this type of situation. I can only say something else-that the mood in Poland is moving increasingly in this direction, in the direction of support of such a figure. And if he has social legitimacy, social support, this would be a solution which satisfied both democracy and Polish reasons of state. To what extent it breaks the present constitutional order or disorder, it is hard for me to say. But I believe that if it serves Polish reasons of state, he should do it. We have examples from Polish history, after all-Pilsudski’s coup d’ttat in 1926, that is a coup carried out in the interests of society, with the support of society. Did he break the law? In some way yes, but rather he was restoring the rule of law in Poland, that is he broke it to restore the rule of law in Poland. He broke up the chaos to restore the rule of law. I think this sort of figure is possible even though the boundary between a person who breaks up chaos to restore the rule of law, and a dictator, is certainly hard to determine. Returning to the rule of law, I asked if he preferred the German conception of the

Rechtsstaat, which stresses order through law, or the Anglo-American rule of law which lays more stress on the rights of people. First he argued that Anglo-American conceptions-based on an ages-long history of living with the l aw-cou ld not be translated to Polish conditions, in particular to a country whose legal traditions were so disrupted that Poland could be called ‘a country without a past.’ I then asked him to abstract from feasibility and consider desirability, what ideal was more appealing to him:

Ignoring Poland’s past, and its geographic position, what is and will go on in the East-and terrible things will occur t h e r e 4 consider that while the Anglo-Saxon conception is very tempting and attractive, in our circumstances it would not work; in our conditions the state must be a strong organism which assures citizens perhaps less freedom but will assure it in reality. Rather than a state which gave citizens very much freedom but so that some stranger would come and take it away or destroy it. Let me be understood, not a dictatorship but a state of freedom, a state of law, perhaps less sharply than the German-recognising civil rights but first of all with the emphasis that the state must be important and functional and guaranteeing freedom and democracy. I very much fear the dangers associated with the second [Anglo-American] conception. It is not an accident that England is an island. And the United States is an island too, because neither Mexico nor Canada ... -and Australia. There we can develop this conception. Poland is not an island. Poland has on its east millions of quarrelling Asians, Islam, poverty, Russia with no political culture or thought. Here terrible things are going to happen. We must be strong. The KPN is not in government, though it is a significant political force. Its appeal

is likely to grow if conditions get harder and fall if they do not. But talk of legal and other chaos, the need for a strong state, and the difficulty and importance of effectiveness, are not an opposition or right wing monopoly.

4 Paradoxes of Democratic Transformation

Running the Polish administrative system is not an easy job. The person who did it until late in 1993-one of the most important political figures in the country-was Jan Maria Rokita, Chairman of the Council of Ministers. He is young (mid-30s), legally trained in Cracow, and a member of the Democratic Union, the leading party in the then-governing coalition. Its profile is European and roughly centrist, and it includes some of the most distinguished intellectuals of the Solidarity period, including Tadeusz Mazowiecki, the first non-communist Prime Minister; Bronislaw Geremek, distinguished historian and chief party strategist, Jacek Kuron, one of the great heroes of anti-communist resistance and Minister for Labour until 1993. The then Prime Minister, Hanna Suchocka, was also a member.

My appointment with Rokita was for 7.30pm. He took a break from meetings to see me at 10 pm and after our interview went back to work. He regularly worked there until the early morning. He is an exceptionally intelligent man, who seemed to know all the

Martin Krygier 115

arguments, to have considered them, and have a determined line on them all. It was a technocratic line, indeed an ideal typical technocratic line. And it was very impressive.

Since I was speaking to the head of the bureaucracy, I asked whether he was aware of any conflict between law viewed, on the one hand, as a framework for individual activity and on the other as an instrument for the achievement of governmental goals. Rokita knew the distinction well. Indeed he explained that he had been strongly committed to such a dichotomy between law conceived as ‘the stable guarantor of individual liberties above all, and [on the other hand] the extreme instrumentalism of law by the communist authorities.’ His views, however, had changed:

This conception was strongly present in my thinking till the moment-it was strongly in the form of a dichotomy. two worlds-until I came into contact, in reality, with process of making law in the Sejm in 1989.

I found myself in abnormal circumstances, where the decision was to build a new legal system based on liberal standards of the rule of law but, firstly, on the basis of the actually functioning law in Poland, without overthrowing the old system ... secondly, in circumstances where law in Poland became the major instrument of structural transformation of the state-especially the economy, where almost the whole economy was covered by detailed legal regulations from the old system.

From this came the necessity of a continuous instrumentalisation of law for clear goals of transformation, particularly economic transformation. Operating with mechanisms such as customs duties, taxes, various forms of financial relief, budget corrections, that is questions directly affecting citizens’ rights-for example, tax. This has been happening continuously for four years, as a result of obvious need, not as a result of any stable principle, not as a result of any long term perspective, but simply to achieve a certain obvious goal. And this second circumstance is significant since the transformation being achieved is so unwritten- about, so unprogrammed, so unprogrammable, that basically it rests on a general assumption and a general direction-with a constant need to tack, adjust, change course. Changes of course occur every two or three months on various matters. Because no one basically foresees a longer distance. Because there is no way to, not from intellectual weakness or political unwillingness-simply from the uncommonness of the setting.

In these two circumstances 1 have to say I found myself in a situation where my youthful convictions about the rule of law had-under the pressure of reality-to undergo a complete change. Since a more important goal, much more important from my point of view, was the effectiveness of the reform in Poland. And here it turned out that at every moment it was necessary to instrumentalise law. So we-Poland-are paying a high price for these two circumstances, that we used law as the means for transformation and we decided to build on the basis of communist law. For these two things we are paying an enormous price-in the form of a complete disintegration of the legal system; its much extended internal incoherence; very few rules that are stable, particularly in economic life-very few; unheard of confusions in the political system of the state where laws create overlapping spheres of competence of various organs; the political crisis in spring between the Olszewski government and the President is a classic example.

And today I live in the sort of world I live in, that is one where basically certain desires remain in me for a certain form of legal system like that which I once imagined but much contaminated by the reality which exists and the consciousness that ... this situation will not change in a short time.

I am certain, however, that at least certain areas exist where a certain rule of minimum stability should be systematically expanded. This is not something that can be proclaimed from one day to the next ... This is appropriate. It should move in this direction. but it has an asymptotic character . .. gettinfl to a certain ideal is impossible, particularly in these legal institutions of transformation.

1 1 6 Four Visions of Post-Communist Law

I suggested that in a sense he was just saying what people in every government say: that they have so much to do, law is the means of doing it, and that it must be used, however this might affect its character. He interpolated that the situation was more extreme in Poland. I agreed that circumstances in Poland were harder but this cut both ways, because where a western politician treated law instrumentally, he did so in the context of certain safeguards: strong legal traditions, institutions, values, professionals, etc. In Poland the situation might be more dangerous, precisely because of the weaknesses of which Mr Rokita spoke. How did he suggest institutionalising safeguards against the instrumental treatment of law by the government?

The main safeguard is legal tradition, as in Great Britain which lacks the formal safeguards found in France and Germany ... Poland does not have such traditions and long never had, and certainly will not achieve them. A society in which respect for legal norms has been uprooted very effectively by 120 years of partitions, by the German occupation and by communism. Here things have to be done constitutionally ... with this qualification that in the last phase of communism some such institutions developed . . . However the paradox connected with this is-and no one wants to interfere with these institutions--[ he gives examples of decisions of the Constitutional Tribunal] the paradox is that suddenly this type of institution, concerning itself dogmatically with a principle, dogmatic application of that principle by a team of judges becomes a barrier to reform. Here you have a dramatic contradiction of rights ... between the rule of law and the institutions of the country as a state. Such conflicts in a period of transformation must be resolved.

I asked about how one might form protective agencies, and about the relations

Again there is a tension between what you might imagine and what is necessary in the conditions of systemic transformation. An ideal state-from my youthful readings-is a strong and influential system of justice in no way subordinate to the administration which is in a position to shape the practice of the government-create barriers. An extreme model is the United States. It appeals to me very much.

However Polish reality today is such that on the one hand you have a justice system staffed with very poor cadres-judges from the old times who are not necessarily communists but chosen by the old negative selection, and in any case have very little understanding of the nature of the transformations in Poland, and are very poorly rewarded and therefore have very low social prestige, and work in very difficult administrative conditions.

So such a system of courts, to which we gave enormous independence after 1989-trying to distinguish ourselves radically from what went before ... has meant the retention of the bad cadres, it is very hard to get rid of them-they will be there for many years. The incompetence of the courts in circumstances of an economic market suddenly results in decisions [and delays] which block economic development ... It also exaggerates the other difficulties on the political terrain [He instances a seven month court delay in hearing a government demand for an injunction against strikers] The state loses effectiveness of action, it seems laughable among citizens; it loses its authority. Here too there is a dilemma between what is ideally desirable and what in reality becomes brutally contrary.

Again I suggested that his were the dilemmas of every government, though in more extreme circumstances: between effective government and the need for limits. How did he think in such circumstances Poland could manage to develop institutions, legal traditions and a social consciousness that law counts in society.

Of course things should be the way you suggest. The liberal model ... limited government. Our aim was not to build a strong state, but to develop civil society ... It is hard to say why, but the great majority of the institutions of civil society [which existed between the collapse of communism and formation of the new government] disappeared ... Certain institutions have developed but not on a public scale ... But in public life those that existed in 1989 disappeared and those that remain are bad.

between politics and the courts:

Martin Krygier 117

There remains the problem of the defence of the state and the general good against the interests which are tearing things apart, particularly the unions, which are the major actors of civil society ... how to defend the whole of the state, the direction of reform, the collective good, certain higher goods, against quite separate particularisms of the main actors in the public scene tearing things apart. And I think a certain system of equilibrium is necessary. No one in Poland has imagined putting restrictions on institutions of civil society. It would be impossible. It is much easier to do that in Germany. Maybe some would be necessary, for example for certain radical unions. After destruction of the communist state, someone has to concern themselves with the various particularisms which in a period of transformations triumph in civil society, to put against them: unity, authority, order, strength. That is at the moment a much more important problem in a country such as Poland and if that opens a certain mechanism of balance then that mechanism will in the long time perspective shape both legal culture and political culture. If that balance collapses-and at the moment that balance is at the expense of the state-then nothing good will emerge and particularly in the development of legal or political culture ... at the moment the balance is tipped against order, unity, cohesion, authority of the regime, strength. And creation of this mechanism of balance will require strengthening the institutions of the state. Then twenty years must pass and then perhaps something will come from this balance ... We are approaching such a balance now but it is very hard.

Conclusions

One of the most striking features of contemporary Polish life is the shapelessness of almost everything but the Church. Or rather, the flux and lack of fixity in the shape of anything. No one can say just what kind of economy or society will ultimately emerge, nor what kind of political and legal system will crystallise--open or closed, secular or confessional, liberal or authoritarian, European or ethnocentric, bound or unbound in important measure by law. And there are bitter quarrels over all these things. Yet rhetorically at least, many actors agree on the importance of the rule of law. As we have seen, however, three of the four very different political priorities presented here- salvation, leadership, transformation-have in common an overriding concern with ends and a subsidiary concern for means. Each considers its goals enormously important for the future of Poland and each is impatient with restraint in pursuit of these goals. T h e fortunes of particular political formations will fluctuate, as they already have. More stable seems to be the imbalance between concerns with results over processes, manifested by so many of the major players.

A Western non-Catholic-or even a pro-Enlightenment Catholic-has difficulty responding to those whose political goal is Poland’s soul. This is not a matter of religion, which is their business, but of politics and law-which are not theirs alone. I can think of no argument that would persuade Dr Grzeskowiak or Mr Niesolowski that their wish to write their faith into the law might compromise, indeed endanger, the rule of law. Conversely I am unlikely to be persuaded that it would not, o r that the compromise would be worthwhile. Similarly with the authoritarian vision of the KPN.

Mr Rokita is different. He speaks, thoughtfully and powerfully, to deep and general dilemmas of the transformation process. Even an agnostic can empathise. None of the problems he mentions seems to me small, none of the dilemmas false. Yet it is familiar experience that the urgent often threatens to overwhelm the important. That is generally true, and it is all the more so when everything seems urgent, as it must seem to anyone who has to cope with governing and transforming Poland today.22 The very urgency and difficulty of the problems Poland faces, however, and the novelty and weakness of institutions of restraint, make it more rather than less important to attend now to fostering and nurturing the rule of law,

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The rule of law is all about restraint. In the absence of long-established traditions, institutional and professional bearers of values, and a society and a state used to legal limits, all that one can rely on is good will, good rules and good institutions. Poland has some measure of each, but it has their opposites as well. And if that is all you have, you need all the help you can get.

As everyone knows, the law of the western welfare state is increasingly instrumental and discretionary in character, and this has led to talk-by Eugene Kamenka, among others-of a crisis in modern law. I am sceptical that any such crisis has been demonstrated. This is not because it is easy to reconcile such law with the rule of law, but because-in the West-instrumental pressures on law occur the context of strong, long-lived legal institutions, traditions, professions, conventions and expectations. And that makes a great difference. What is manageable or even desirable in such a context might be highly risky without it.23

Strong legal institutions within enduring legal orders, are enveloped and saturated by legal traditions. These carry values, principles, techniques, procedures, ways of working, reading, interpreting, thinking. They carry, and they teach, a legal ethos and a legal s e n ~ i b i l i t y . ~ ~ Moreover, as Philip Selznick has remarked, ‘[i]nstitutions are established, not by decree alone, but as a result of being bound into the fabric of social life.’25 Successful legal institutions tend to become embodied in, or themselves come to embody, ordinary ways of working, thinking and valuing throughout the society. They are hard to shift or ignore. Weak legal orders are altogether less tenacious. They have far fewer internal resources. It is much easier to blow them away, or at least make them bend. If not encouraged to grow, they might simply wither rather than, as Mr Rokita hopes, blossom with time.

Mr Rokita stresses the unprecedented nature of the problems with which Polish governments must deal. It is, however, not quite true that every problem Poland-or other post-communist governments-face is unprecedented. One problem-how to restrain governmental power-is actually quite old. It is what notions of isonomia, and the rule of law are about. And one old threat to the rule of law is to believe that what one must do is too important, unprecedented and urgent to be hampered by legal restraint. It is also old learning that when institutions are weak and ambitions are strong, the sensible move is to attempt to tame the latter by bolstering the former.

None of this is to suggest that the dilemmas Rokita points to are illusory. They are not. But there are two horns to a dilemma, between which one must choose. Too often, and perhaps in this case, executive policies are presented as necessary decisions, before which other considerations must bend and other priorities wait. A choice to favour executive effectiveness over establishing conditions for the rule of law is, after all, precisely that: a choice. One could also choose to compromise executive policies in deference to the need to strengthen the autonomy and solidity of law. Some choices are made because there is an immediate call for them. If the call is demanding it is hard not to make them. But some choices are easier to delay, because though the need is vital it is never obviously urgent. Infrastructural, framework, choices are often of this kind. In fluid circumstances, where insistent and strong demands are constantly placed on the legal system, the moment to build restraint should, I believe, be early rather than late. Otherwise it might never occur.26

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Eugene Kamenka and Alice Erh-Soon Tay, ‘Beyond Bourgeois Individualism: The Contemporary Crisis in Law and Legal Ideology,’ in E. Kamenka and A. E.-S. Tay (eds), Feudalism, Capitalism and Beyond (London, 1975), p. 128. I borrow the notion of craftsmanship in this context from Giuseppe di Palma, To Craft Democracies (Berkeley, 1990). Adam Czarnota and Martin Krygier, ‘From State to Legal Traditions? Prospects for the Rule of Law after Communism’, to appear in Janina Frentzel-Zagorska (ed.), From a One- Party State to Democracy: Transition in Eastern Europe (Amsterdam, 1993), pp. 91-112; Czarnota and Krygier, ‘Revolutions and the Continuity of European Law,’ in Zenon Bankowski (ed.), Revolutions in Law and Legal Thought (Aberdeen, 1991), pp. 90-112; Martin Krygier (ed.), Marxism and Communism. Posthumous Reflections on Politics, Society, and Law (Amsterdam, 1994), pp. 135-68. ‘Eastern Europe: The Year of Truth’, New York Review of Books, 15 February 1990, p. 21. In Wojciech Salmonowicz (ed.), Porozumienia Okraglego Stolu, 5 , (Olsztyn, 1989). Quoted in Grazyna Skapska, ‘The Rule of Law from the East European Perspective’, Law and Social Inquiry, 15, 1990, p. 700. ibid. See Jerzy Szacki, ‘A Revival of Liberalism?’, Social Research, 1990, pp. 463-91, discussed in Martin Krygier, ‘Marxism, Communism, and Narcissism,’ Law and Social Inquiry, 15, 1990, pp. 720ff. See Adam Czarnota and Martin Krygier, ‘From State to Legal Traditions? Prospects for the Rule of Law after Communism’, n. 3. See Mark F. Brzezinski, ‘The Emergence of Judicial Review in Eastern Europe: The Case of Poland,’ American Journal of Comparative Law, 41 (2), 1993, pp. 153-200. I interviewed Professor Letowska and members of the Highest Administrative Court and the Constitutional Tribunal. Elsewhere I will discuss these institutions and the views of these legal professionals. Quoted in Polityka March 20, 1993. Marek Jurek, quoted in Rzeczpospolita, 22 January 1993, p. 2. Recently, following attacks on him for raising the legality of the introduction of compulsory religious instruction into schools and on the Constitutional Tribunal for hearing the issue, the Ombudsman, Professor Zielinski, protested that ‘the Church is interfering in the sphere of the three organs of government: legislative, executive and judicial. I do not want to be a pessimist, but I fear that we are standing at the gateway to a confessional state.’ Zycie Wurszawy May. This appears to be a reference to the Ombudsman’s finding invalid a law which took pensions, awarded under communist law, from members of the former secret police who had violated individual rights. I was told by the predecessor of this Ombudsman, Professor Ewa Letowska, that the new law had in no way defined the offence but left it to the Council of Ministers to decide. Professor Letowska expressed surprise that Senator Grzeskowiak, who had written ‘a good book on nullurn crimen sine lege,’ could have voted for this law. All my quotations are translated from my interview with Senator Grzeskowiak in the Polish Senate on 12 January 1993. It is an interesting sort of universality, since elsewhere Niesolowski explained the importance of legislative support for Christian values thus: ‘I demand respect for Christian values in public life because otherwise the state will become possessed by other ideologies which say that they are not ideologies-but are. Besides there are no moral alternatives to Christianity.’ ‘Q. What ideology do you have in mind?’

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‘Liberal ideology, aiming to build a morally relativist state, a completely secular humanist state, like the French Third Republic, where clericalism was treated as an enemy. It does not have to be a communist state. Such a situation, that the Church is persecuted, and the state is democratic already occurred. The Third Republic was a democratic state. I fear precisely that. I guard against that.’ [Interview, ‘Respektujace wartosci chrzescijanskie’, Nowa Res Publica 17, February 1993.1 Translations from interview with Stefan Niesolowski, 8 January 1993. Niesolowski’s party refused to vote for Poland’s anti-abortion law because it considered its penalties to have been diluted unacceptably during the parliamentary debate. One member of the Party, Halina Nowina-Konopczyna, explained her opposition to a proposed referendum on abortion thus: ‘Here it is not possible to give a decision over to a fortuitous society, a fortuitous collection of people taking part in a referendum on the question whether one can kill a person. In any event, how can any one decide whether it is or is not permitted to kill a person?’ Television interview on Panorama, 12 December 1992. Translations from interview with Lewandowski. This proposal was suggested also by a number of other lawyers with whom I spoke, including the President’s Secretary of State, Lech Falandysz and by Adam Zielinski, member and ex-President of the Highest Administrative Court. Translations from interview with Jan Maria Rokita, 8 January 1993. ‘In the Polish situation of today, equally in the activities of the state, the administration and the parliament, there is a ceaseless conflict of the urgent with the important. And as a rule the urgent wins. That there is a conflict between the urgent and the important is presumably generally true of state activity. With us, however, it is particularly intensified because of the process of transformation, changes of old structures into new ones.’ [Jacek Kuron, interview-’Korporacyjne, wspomagajace aktywnosc obywateli,’ Nowa Res Publica, 11, February 1993. See Philip Selznick, The Moral Commonwealth (Berkeley, 1992). I have discussed this issue in a more general context in my ‘Walls and Bridges. A comment on The Moral Commonwealth’, California Law Review, 1993. See Martin Krygier, ‘Legal Traditions and their Virtue,’ in Grazyna Skapska (ed.), Prawo w Zmieniajacym Sie Spoleczenstwie (Cracow, 1992), pp. 243-64. The Moral Commonwealth, p. 232. Cf. Bruce Ackerman’s recent argument for the importance of ‘channelling energy toward the construction of enduring constitutional order’ in the new, proto-liberal states of central and eastern Europe, and even ‘for setting one priority above all others. Neither the privatization of the economy nor the construction of civil society should preoccupy [liberal] revolutionaries first and foremost. However much liberals may want to think about such things, the organization of state power deserves immediate concern. The window of opportunity for constitutionalizing liberal revolution is open for a shorter time than is generally recognized. Unless the constitutional moment is seized to advantage, it may be missed entirely.’ Ackerman, The Future of Liberal Revolution (Yale, 1992), p. 46.