Constitutionalism In East Central Europe? The Case Of Slovakia Under Meciar

East European Quarterly, Spring, 1999 by Christian Boulanger

In a recent issue of the East European Constitutional Review, Ewa Letowska recounts the following anecdote: A hungry traveler walks into a shady restaurant in Moscow. He sits down and inspects the menu. "I'll have the pork chops," he says. "We don't have any," answers the waiter. "Well then, I'll have the meat balls." "We don't have those either," "How about liver then?" "Nope," answers the waiter. The annoyed customer finally asks: "Am I reading the menu or our constitution?"(1)

This anecdote captures the role of Leninist constitutions in the political reality of the former Soviet bloc. Andrew Arato has described the "double constitutional reality" of Soviet-style constitutional practice as the coexistence of the unwritten authoritarian constitution of the one-party state, and a written, but unused, formally "democratic" constitution mainly for the use in public relations.(2)

In the years following the revolutionary events in 1989/90, all East Central European countries enacted new constitutions or revised the existing ones to institutionalize the regime change from Leninism to democracy.(3) The process of constitution making was an important public event and drew much attention from the western industrialized nations, which also had a significant influence.(4) As opposed to the Leninist practice, it was expected that these new constitutions would shape and transform the political system of the new democracies. "Constitutionalism" and the "Rule of Law" would now reign supremely, according to much of the political and scholarly discourse.

The result, however, has been mixed. According to Western observers, countries like Poland, Hungary and the Czech Republic have transformed their political systems successfully. Others, such as Slovakia, Bulgaria, Romania, and the now independent states of former Yugoslavia departed, in different degrees, seriously from the model of constitutional democracy.(5) In spite of liberal-democratic constitutions with many human rights provisions, democratically elected regimes have disregarded the rights of minorities and the political opposition.

Using the Slovak case as an example, this paper explores the question why in some post-Leninist countries constitutions play a prominent role in the political system while in others the politicians and state officials continue not to feel bound by the "letter and spirit" of constitutional provisions. A single case study, the paper does not pretend to offer an exhaustive explanation for even the Slovak case, let alone to present a theory to explain post-Leninist political development generally. My aim is, nevertheless, to discuss and apply some of the current theories of comparative social science and then to present a somewhat different perspective based on an analysis of legitimizing ideologies and legitimate domination in the tradition of Max Weber.(6) The paper had originally been written before the Meciar government was voted out of office in the September 1998 elections and does not cover this and subsequent events.

The paper is divided into three parts. I will first discuss alternative approaches to the nature of Constitutionalism. I will argue that Constitutionalism is a political ideology that offers a source of legitimacy for governments. In this perspective, Constitutionalism is not characterized by a certain institutional arrangement, but rather by a set of core values. In my view, modern Constitutionalism is characterized as institutionalized political toleration.

After I have presented, in a second part, some empirical evidence of how this ideology has so far not taken root in Slovakia, I will focus on what I assume to be an important structural cause of this development. Against simplistic explanations that rely on "political culture," I argue that we should pay attention to history rather than to "culture." In this view, the history of a country is a resource of narratives which political actors use to construct mobilizing ideologies. In this respect, the Slovakia lacks a "usable past" in favor of Constitutionalism. Instead, nationalist ideologies offered, so far at least, a more powerful source of political legitimacy. If this analysis is correct, it allows some insights into the mechanisms of how past experiences influences present political developments.

I. THEORIES OF CONSTITUTIONALISM

THEORY AND IDEOLOGY

In order to explain the nature of Constitutionalism, I want to start by setting out two premises that underlie my analysis. First, I argue that we have to examine "Constitutionalism" empirically, although the term refers to constitutions, which are, in most cases, (normative) legal texts. Much of current "comparative Constitutionalism" is focused on the comparison and contrasting of legal documents and the interpretation of their provisions. "The law," however, cannot solely be studied from a legal point of view. Max Weber notes that

   close attention must be paid to the distinction between the legal and the
   sociological points of view. Taking the former, we ask: What is
   intrinsically valid as law? That is to say: What significance or, in other
   words, what normative meaning ought to be attributed in correct logic to a
   verbal pattern having the form of a legal proposition. But if we take the
   latter point of view, we ask: What actually happens in a group owing to the
   probability that persons engaged in social action, especially those
   exerting a socially relevant amount of power, subjectively consider certain
   norms as valid and practically act according to them, in other words,
   orient their own conduct towards these norms?(7)