The Rule of Law in Transition
This chapter explores the various legal responses to illiberal rule and the guiding rule-of-law principles in these times. The attempt to adhere to the rule of law during periods of political upheaval creates a dilemma. There is a tension between the rule of law in transition as backward-looking and forward-looking, as settled versus dynamic. In this dilemma, the rule of law is ultimately contingent; rather than merely grounding legal order, it serves to mediate the normative shift in values that characterizes these extraordinary periods. In democracies, our intuition is that the rule of law means adherence to known rules, as opposed to arbitrary governmental action.1 Yet revolution implies disorder and legal instability. The threshold dilemma of transitional justice is the problem of the rule of law in periods of radical political change. By their very definitions, these are often times of massive paradigm shifts in understandings of justice. Societies are struggling with how to transform their political, legal, and economic systems. If ordinarily the rule of law means regularity, stability, and adherence to settled law, to what extent are periods of transformation compatible with commitment to the rule of law? In such periods, what does the rule of law mean?
The dilemma of the meaning of the rule of law transcends the moment of political transformation and goes to the heart of the basis for a liberal state. Even in ordinary periods, stable democracies struggle with questions about the meaning of adherence to the rule of law. Versions of this transitional rule-of-law dilemma are manifest in problems of successor justice, constitutional beginnings, and constitutional change.2 The rule-of-law dilemma tends to arise in politically controversial areas, where the value of legal change is in tension with the value of adherence to the principle of settled legal precedent. In ordinary periods, the problem of adherence to legal continuity is seen in the challenge posed by political and social change over the passage of time. Accordingly, the ideal of the rule of law as legal continuity is captured in the principle of stare decisis, a predicate of adjudication in the Anglo-American legal system. “[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.”3 In transformative periods, however, the value of legal continuity is severely tested. The question of the normative limits on legitimate political and legal change for regimes in the midst of transformation is frequently framed in terms of a series of antinomies. The law as written is compared to the law as right, positive law to natural law, procedural to substantive justice, and so forth.
My aim is to resituate the rule-of-law dilemma by exploring societal experiences that arise in the context of political transformation. My interest is not in idealized theorizing about the rule of law in general. Rather, the attempt is to understand the meaning of the rule of law for societies undergoing massive political change. This chapter approaches the rule-of-law dilemma in an inductive manner by resituating the question as it actually arises in its legal and political contexts. It explores a number of historical postwar cases, as well as precedents arising in the more contemporary transitions. Although the rule-of-law dilemma arises commonly in the criminal context, the issues raise broader questions about the ways in which societies in periods of intense political change reason about the relation of law, politics, and justice. As shall become evident, these adjudications reveal central ideas about the extraordinary conception of the rule of law and of values of justice and fairness in periods of political change.
The Rule-of-Law Dilemma: The Postwar Transition
In periods of substantial political change, a dilemma arises over adherence to the rule of law that relates to the problem of successor justice. To what extent does bringing the ancien régime to trial imply an inherent conflict between predecessor and successor visions of justice? In light of this conflict, is such criminal justice compatible with the rule of law? The dilemma raised by successor criminal justice leads to broader questions about the theory of the nature and role of law in the transformation to the liberal state.
The transitional dilemma is present in changes throughout political history. It is illustrated in the eighteenth-century shifts from monarchies to republics but has arisen more recently in the post–World War II trials. In the postwar period, the problem was the subject of a well-known Anglo–American jurisprudential debate between Lon Fuller and H.L.A. Hart, who took as their point of departure the problem of justice after the collapse of the Nazi regime.4 Such postwar theorizing demonstrates that in times of significant political change, conventional understandings of the rule of law are thrown into relief.5 Although the transitional context has generated scholarly theorizing about the meaning of the rule of law, that theorizing does not distinguish understandings of the rule of law in ordinary and transitional times. Moreover, the theoretical work that emerges from these debates frequently falls back on grand, idealized models of the rule of law. Such accounts fail to recognize the exceptional issues involved in the domain of transitional jurisprudence. Recognition of a domain of transitional jurisprudence, however, raises again the issue of the relation of the rule of law in transitions to that in ordinary periods.
The Hart-Fuller debate on the nature of law focuses on a series of cases involving the prosecutions of Nazi collaborators in postwar Germany. The central issue for the postwar German courts was whether to accept defenses that relied on Nazi law.6 A related issue was whether a successor regime could bring a collaborator to justice and, if so, whether that would mean invalidating the predecessor laws in effect at the time the acts were committed. In the “Problem of the Grudge Informer,” the issue raised is set out in a hypothetical somewhat abstracted from the postwar situation: The so-called Purple Shirt regime has been overthrown and replaced by a democratic constitutional government, and the question is whether to punish those who had collaborated in the prior regime.7 Hart, an advocate of legal positivism,8 argued that adherence to the rule of law included recognition of the antecedent law as valid. Prior written law, even when immoral, should retain legal force and be followed by the successor courts until such time as it is replaced. In the positivist position advocated by Hart, the claim is that the principle of the rule of law governing transitional decision making should proceed—just as it would in ordinary times—with full continuity of the written law.
In Fuller’s view, the rule of law meant breaking with the prior Nazi legal regime. As such, Nazi collaborators were to be prosecuted under the new legal regime: In the “dilemma confronted by Germany in seeking to rebuild her shattered legal institutions … Germany had to restore both respect for law and respect for justice … [P]ainful antinomies were encountered in attempting to restore both at once.” Whereas the rule-of-law dichotomy was framed in terms of procedural versus substantive ideas of justice, Fuller tries to elide these competing conceptions by proposing a procedural view of substantive justice.9 According to the German judiciary, there is a dichotomy within the rule of law between the procedural legal right and the moral right. In “severe cases,” the moral right takes precedence. Accordingly, formalist concepts of the law, such as adherence to putative prior law, could be overridden by such notions of moral right. The natural law position espoused by the German judiciary suggests that transitional justice necessitates departing from prior putative law. For Fuller, however, it would not imply such a break, because past “law” would not qualify as such for failure to comply with various procedural conditions.10
The above debate failed to focus, however, on the distinctive problem of law in the transitional context. In the postwar period, this dilemma arose as to the extent of legal continuity with the Nazi regime: To what extent did the rule of law necessitate legal continuity? A transitional perspective on the postwar debate would clarify what is signified by the rule of law. That is, the content of the rule of law is justified in terms of distinctive conceptions of the nature of injustice of the prior repressive regime. The nature of this injustice affects consideration of the various alternatives, such as full continuity with the prior legal regime, discontinuity, selective discontinuities, and moving outside the law altogether. For positivists, full continuity with the prior legal regime is justified by the need to restore belief in the procedural regularity that was deemed missing in the prior repressive regime; the meta-rule-of-law value is due process, understood as regularity in procedures and adherence to settled law. The natural law claim for legal discontinuity is also justified by the nature of the prior legal regime but according to the conceptualization of past tyranny. On the natural law view of the rule of law, Fuller’s approach appears more nuanced, as it attempts to offer a procedural understanding of substantive justice values. Given the predecessor regime’s immorality, the rule of law needs to be grounded in something beyond adherence to preexisting law.11
To what extent is adherence to the laws of a prior repressive regime consistent with the rule of law? Conversely, if successor justice implied prosecuting behavior that was lawful under the prior regime, to what extent might legal discontinuity instead be mandated by the rule of law? The transitional context fuses these multiple questions of the legality of the two regimes and their relation to each other.
In the postwar debate, both natural law and positivist positions took as their point of departure certain presumptions about the nature of the prior legal regime under illiberal rule.12 Both positions draw justificatory force from the role of law in the prior regime; nevertheless, they differ on what constitutes a transformative principle of legality. The positivist argument attempts to divorce questions of the legitimacy of law under the predecessor and successor regimes. The response to past tyranny is thought not to lie in the domain of the law at all but instead in the domain of politics. If there is any independent content given to the rule of law, it is that it ought not serve transient political purposes. The positivist argument for judicial adherence to settled law, however, relies on certain assumptions about the nature of legality under the predecessor totalitarian regime.13 The justification for adhering to prior law in the transitional moment is that under prior repressive rule, adjudication failed to adhere to settled law. On the positivist view, transformative adjudication that seeks to “undo” the effect of notions of legality supporting tyrannical rule would imply adherence to prior settled law.
The natural law position highlights the transformative role of law in the shift to a more liberal regime. On this view, putative law under tyrannical rule lacked morality and hence did not constitute a valid legal regime. To some extent, in this normative legal theory, collapsing law and morality, the transitional problem of the relation between legal regimes disappears. Insofar as adjudication followed such putative law, it, too, was immoral in supporting illiberal rule. Thus, the cases of the informers are characterized as “perversions in the administration of justice.”14 From the natural law perspective, the role of law in transition is to respond to evil perpetuated under the past administration of justice. Because of the role of judicial review in sustaining the repression (this topic was discussed in the Hart-Fuller debate),15 adjudication as in ordinary times would not convey the rule of law. This theory of transformative law promotes the normative view that the role of law is to transform the prevailing meaning of legality.16
In the postwar debate, the questions arose in the extraordinary political context following totalitarian rule. Yet, the conclusions abstract from the context and generalize as if describing essential, universal attributes of the rule of law, failing to recognize how the problem is particular to the transitional context. Resituating the problem should illuminate our understanding of the rule of law. I now turn from the postwar debate to more contemporary instances of political change illustrating law’s transformative potential. Those instances exemplify the tension between idealized conceptions of the rule of law and the contingencies of the extraordinary political context. Struggling with the dilemma of how to adhere to some commitment to the rule of law in such periods leads to alternative constructions that mediate conceptions of transitional rule of law.
Shifting Visions of Legality: Post-Communist Transitions
The “velvet” revolutions’ rough underside has been revealed in courts of law, where debates about the content of the political transformation continue to simmer. A number of controversies over successor criminal justice exemplify the transitional rule-of-law dilemma. Here, I focus on two: In the first case, a Hungarian law allowed prosecutions for offenses related to the brutal Soviet suppression of the country’s uprising in 1956;17 in the other, unified Germany prosecuted border guards for shooting civilians who were attempting to make unlawful border crossings along the Berlin Wall. The cases involve weighty symbols of freedom and repression: 1956 is considered the founding year of Hungary’s revolution, whereas the Berlin Wall and its collapse are the region’s central symbols of Soviet domination and demise. The cases illustrate the dilemmas implied in the attempt to effect substantial political change through and within the law. Although the two cases seemingly suggest diverging resolutions of the rule-of-law dilemma, they also reveal common understandings.
After the political changes of 1991, Hungary’s Parliament passed a law permitting the prosecution of crimes committed by the predecessor regime in putting down the popular 1956 uprising. Despite the passage of time since these crimes were committed, the law would have lifted statutes of limitations for treason and other serious crimes,18 effectively reviving these offenses. Similar legislation reviving the time bars elapsing during the Communist regime was also enacted elsewhere in the region, as in the Czech Republic.19 The problem of statute-of-limitations laws commonly arises after long occupations when societies attempt to prosecute crimes committed under predecessor regimes. Thus, in the postwar transitions in Western Europe, the rule-of-law problem posed by the passing of statutes of limitations did not arise in the immediate postwar period but only later in the 1960s.20 The controversy over the statute-of-limitations law raised a broader question: To what extent is a successor regime bound by a prior regime’s law?
Hungary’s Constitutional Court described the dilemma in terms of familiar antinomies: the rule of law understood as predictability versus the rule of law understood as substantive justice. So framed, the choices seemed irreconcilable; yet, ultimately the statute-of-limitations law and the proposed 1956-era prosecutions were held unconstitutional. The principle of the rule of law required prospectivity in lawmaking, even if it meant the worst criminal offenses of the prior regime would go unpunished. The opinion begins with a statement of the court’s characterization of the dilemma it confronted: “The Constitutional Court is the repository of the paradox of the ‘revolution of the rule of law.’”21 Why a paradox? “Rule of law,” the court said, means “predictability and foreseeability.”22