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Legal Consequences of Past Collective Wrongdoing after Communism

Published online by Cambridge University Press:  06 March 2019

András Sajó

Extract

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In these notes, I reflect on the possibilities of confronting the darkest chapters of East-Central European history, namely, genocide. This problem is closely related to the moral refoundation of society, law and politics. My concerns are primarily related to the role of law in the process, both descriptively, by trying to explain very contradictory developments in Hungary, and normatively, by arguing for a shame dictated legal policy.

Type
Articles: Special Issue: Confronting Memories – Memory, Politics and Law
Information
German Law Journal , Volume 6 , Issue 2: Article: Special Issue - Confronting Memories: European „Bitter Experiences“ and the Constitutionalization Process , 01 February 2005 , pp. 425 - 437
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 National shame of this kind is also justified in cases where the acts of genocide were directed against groups in other countries. Such acts have specific legal implications. This paper will not discuss the specific problems of international (transboundary) genocide.Google Scholar

2 There were additional killings after the Hungarian Arrow Cross Party came to power in the autumn of 1944. The pro-Nazi (Arrow Cross) government in Hungary was clearly a German puppet. But, in Budapest, where many of the murders occurred, the Arrow Cross government had at least some legality as well as broad discretion to act. It is fair to say that, during this period, many of the murders were committed under the colours of the Hungarian flag.Google Scholar

3 István Bibó, Zsidókérdés Magyarországon 1944 után (The Jewish Question in Hungary after 1944), in: Válogatott tanulmányok (Selected Writings) II. 624-625 (1986).Google Scholar

4 András Sajó, Affordable Shame, in: The Paradoxes of Unintended Consequences 163 (Lord Dahrendorf et al., eds., 2000).Google Scholar

5 There is a second preliminary objection that regards shame as a moral obligation stemming from the Holocaust. Is it meaningful to speak of shame as part of the collective consciousness?Google Scholar

6 Bibó (note 3), 631.Google Scholar

7 Luhmann, Niklas, Law as a Social System, 83 Northwestern Univ. Law Review 136, 140 (1989).Google Scholar

8 Act XV of 1938 “on the more efficient safeguard of equilibrium in social and economic life”.Google Scholar

9 Bibó (note 3), 632, was of the opinion that anti-Jewish mob sentiment, if left to itself might very easily turn into persecution and murder. “Such historical experience was built into the nerves of the Jews in the thirties.”Google Scholar

10 Earlier, the Act on partial compensation for loss of property was applicable only for the period beginning in 1949. The Constitutional Court ruled that this date is impermissible discrimination with regard to the victims of the previous totalitarian regimes and ordered the clock to be set back to 1939. Thus, Jews who lost their property during the race laws and had not been not compensated became eligible. However, the Jewish victims received compensation vouchers later than other groups, and, consequently, could not participate in most of the ‘land for voucher’ transactions.Google Scholar

11 22/1996 AB hat. (VI. 25.). It would be unfair to accuse the Hungarian Constitutional Court of being too slow in these cases. They simply failed to act in accordance with the dictates of the social sensitivity of the matter. Furthermore, the HCC ruled twice that the special restoration provisions of the Paris Peace Treaty in favour of the victims of racism had to be implemented. Any speculation about special bias must, therefore, be ruled out.Google Scholar

12 (30/1992) AB hat.Google Scholar

13 The decision was celebrated as a liberal one, and the supporters of the precedent came exclusively from among the hard-core Hungarian liberals who were accused of dogmatism, which does not reflect Hungarian social and historical realities.Google Scholar

14 The opinion of the Bundesgerichtshof is quoted in full agreement by the Bundesverfassungsgerichtshof in the Holocaust Denial Case, 90 BverfGE 241 (1994). Quoted after Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed., 1997).Google Scholar