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The Constitution of the Heart

Published online by Cambridge University Press:  27 December 2018

Martin Krygier
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Type
Review Essay
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Law & Social Inquiry , Volume 20 , Issue 4 , Fall 1995 , pp. 1033 - 1066
Copyright
Copyright © American Bar Foundation, 1995 

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References

1 Ken Jowitt, New World Disorder: The Leninist Extinction 257 (Berkeley: University of California Press, 1992) (“Jowitt, New World Disorder”). Jowitt borrows the term from paleontology, where it refers to “the abrupt and accelerated termination of species that are distributed globally, or near-globally.” The analogy is with dinosaurs at the end of the Cretaceous period.Google Scholar

2 See Adam Podgórecki, Polish Society 9 (Westport, Conn.: Praeger, 1994) (“Podgórecki, Polish Society”); cf. Jowitt, New World Disorder 285: “Once again, Eastern Europe has become a laboratory in which a set of experiments are being undertaken under less than controlled conditions.”Google Scholar

3 See Andras Sajo, “On Old and New Battles: Obstacles to the Rule of Law in Eastern Europe,” 22 (1) J. L. & Soc'y 97 (1995); Grażyna Skąpska, “The Legacy of Anti-Legalism,”in Martin Krygier, ed., Marxism and Communism: Posthumous Reflections on Politics, Society, and Law 199 (Amsterdam & Atlanta: Editions Rodopi, 1994); Martin Krygier, “Four Visions of Post-Communist Law,” 40 Australian J. Pol. & Hist. 104 (1994) (Special Issue: Ideas and Ideologies, Essays in Memory of Eugene Kamenka).Google Scholar

4 See Lena Kolarska-Bobińka, “A jednak warto było!” (And Yet It Was Worthwhile!), Wiadomośći Polskie (Sydney), 25 April 1994; Centrum Badania Opinii Społecznej (CBOS) (Center for Research on Public Opinion), Czy Potrzebna Jest Nowa Konstytucja? (Is a New Constitution Necessary?) (Warsaw: CBOS, Feb. 1994) (“CBOS, Czy Potrzebna Jest Nowa Konstytucja?”); id., Co Polacy Wiedzą o Konstytucji? (What Do Poles Know about the Constitution?) (Warsaw: CBOS, Feb. 1994) (“CBOS, Co Polacy Wiedzą o Konstytucji?”). Google Scholar

5 Or so a Polish colleague muttered, while together we endured a conference of such performances.Google Scholar

6 Marc Galanter, “Law Abounding: Legalisation around the North Atlantic,” 55 Mod. L. Rev. 24 (1992).Google Scholar

7 See Giuseppe di Palma, To Craft Democracies: An Essay on Democratic Transitions, (Berkeley: University of California Press, 1990) (“Di Palma, To Craft Democracies”). Di Palma's first chapter, “Rethinking Some Hard Facts,” discusses many of the reasons adduced for pessimism about the possibility of democratic transitions in post-dictatorial states. The rest of his book is a brilliant demonstration that hard facts should not necessarily be assumed to be insuperable facts.Google Scholar

8 Cf. David Stark, “Path Dependence and Privatization Strategies in East Central Europe,” 6 (1) East Eur. Pol. & Societies 17 (Winter 1992).CrossRefGoogle Scholar

9 Such clichés have played no small part in Western diplomacy in the war in Bosnia-Herzegovina. As a result, specific aims of particular actors have been glossed over on the basis of half-understood clichés about “ancient ethnic hatreds” for which, it appears, no one alive is responsible and about which, conveniently for some, nothing can now be done. See Noel Malcolm, “Bosnia and the West: A Study in Failure,” 39 Nat'l Interest 3 (Spring 1995).Google Scholar

10 Cf. Martin Krygier, “Dialektyczna natura tradycji” (The Dialectical Nature of Tradition), 11 Socjoligia Wychowania, Acta Universitatis Nicolai Copernici 45 (1994).Google Scholar

11 See Richard Pipes, Russia under the Old Regime (Harmondsworth Penguin, 1974). But cf. T. H. Rigby, “Russia: A Troubled Path to Constitutional Government,” forthcoming in Brian Galligan, ed., Redesigning the State: The Problems of Constitutional Change (Toronto: University of Toronto Press, 1995).Google Scholar

12 Cf. sources cited in note 3.Google Scholar

13 Jowitt's collection of essays, New World Disorder (cited in note 1), is the most forceful statement of this position known to me.Google Scholar

14 Ernest Gellner, “Civil Society in Historical Context,” 129 Int'l Soc. Sci. J. 495 (1991). See Gellner's more extended treatment in his Conditions of Liberty: Civil Society and Its Rivals (London: Hamish Hamilton, 1994).Google Scholar

15 Piotr Sztompka, “The Intangibles and Imponderables of the Transition to Democracy,” 3 Stud. Comp. Communism 2 (1991); Sztompka, “Civilizational Incompetence: The Trap of Post-Communist Societies,” 22 (2) Zeitschrift für. Soziologie 85 (1993).Google Scholar

16 New World Disorder 293. For similar characterizations, see John Clark & Aaron Wildavsky, The Moral Collapse of Communism: Poland as a Cautionary Tale (San Francisco: Institute of Contemporary Studies, 1990) (“Clark & Wildavsky, Moral Collapse”), and Sztompka, 3 Stud. Comp. Communism at 2.Google Scholar

17 I have sought to place this conception of law within a more general frame in “Legal Traditions and their Virtue,”in Grażyna Skepska, ed., Prawo w zmieniającym się społeczeństwie (Law in a Changing Society) 243 (Cracow: Jagiellonian University, 1992), esp. at 245.Google Scholar

18 “Dismantling a Patronage State” (presented to conference on Reform and Democracy on “The Challenge to the Democratic Left in Eastern Europe,” Warsaw, Sept. 1990; reprinted in Janina Frentzel-Zagórska, ed., From a One-Party State to Democracy: Transitions in Eastern Europe 139 (Amsterdam & Atlanta: Editions Rodopi, 1993) (“Frentzel-Zagórska, ed., From a One-Party State”). Google Scholar

19 Economist, 16 May 1992, at 59.Google Scholar

20 Jowitt considers Poland the “one genuine exception” to his insistence that “the historical differences between countries and their current modes of transition from Leninism are not as important as the similarities.”New World Disorder 299 (cited in note 1). This is because the regime failed to destroy the independence of the Church or collectivize agriculture, “the historically momentous emergence of a counterpolity, Solidarity” occurred there, and there existed an “established” leadership (much of which, incidentally, was quickly disestablished). However, this exception raises more questions than it answers. Jowitt does nothing to explain why these anomalies occurred in Poland rather than elsewhere, and an approach focused on the generic phenomenon of Leninism is unlikely to do so. Moreover, as soon as one descends to particulars, one observes that present and past differences among, say, even such close “post-Leninist” neighbors as Serbia, Hungary, and Romania appear to have led to dramatically different results. Again, Leninism cannot explain them all.Google Scholar

21 Di Palma, To Craft Democracies 9 (cited in note 7).Google Scholar

22 Cf. Mira Marody, “State and Society in Poland,”in Jacques Coenen-Huther & Brunon Synak, eds., Post-Communist Poland: From Totalitarianism to Democracy? 15 (New York: Nova Science Publishers, 1993) (“Coenen-Huther & Synak, Post-Communist Poland”); Edmund Mokrzycki, “The Legacy of Real Socialism, Group Interests, and the Search for a New Utopia,”in W. Connor & P. Płoszajski, eds., Escape from Socialism: The Polish Route 269 (Warsaw: IFiS, 1992); Mokrzycki, “The Legacy of ‘Real Socialism’ and Western Democracy,” 2 Stud. Comp. Communism 211 (1991); Mokrzycki, “Spoleczne ograniczenia reform wschodnioeuropejskich” (The Social Limits of East European Economic Reforms), 3 Krytyka (1991). This is also the position of Jowitt, though he sees intensification of tendencies in preceding societies, rather than discontinuities. See also Sztompka, 3 Stud. Comp. Communism; and Alexander Zinoviev, The Reality of Communism (London: Victor Gollancz, 1984), and id., Homo Sovieticus (London: Victor Gollancz, 1985).Google Scholar

23 One could add to the list Adam Podgórecki, a Pole teaching at Carleton.Google Scholar

24 Podgórecki defines intuitive law as “law based on mutual agreements among parties” (at 160).Google Scholar

25 Gelher, 129 Int'l Soc. Sci. J. 500 (cited in note 14).Google Scholar

26 See Janine R. Wedel, The Private Poland (New York: Facts on File, 1986), and Wedel, ed., The Unplanned Society: Poland during and after Communism (New York: Columbia University Press, 1992).Google Scholar

27 Stefan Nowak, “Values and Attitudes of the Polish People,” 245 (1) Sci. American 23, 29 (1981). See also Brunon Synak, “The Polish Society: From Homogeneity to Diversity,” in Coenen-Huther & Synak, Post-Communist Poland 3–4.CrossRefGoogle Scholar

28 On these aspects of the ideology of Solidarity, see Arista Maria Cirtautas & Edmund Mokrzycki, “The Articulation and Institutionalization of Democracy in Poland,” 60 (4) Soc. Research 804-5 (Winter 1993); Sergiusz Kowalski, “The Concept of Rights and Duties: Considerations on Everyday Thinking,” in Jacek Kurczewski, ed., Niedzica Castle Papers on Rights and Duties 87, 89–91 (Warsaw,: Institute of Social Prevention & Resocialization, 1987). For a particularly penetrating analysis of this ideology and its problematic relationship with liberalism, see Jerzy Szacki, Liberalizm po Komunizmie (Warsaw: Stefan Batory Foundation, 1994). Cf. Martin Krygier & Adam Czarnota, “Rights, Civil Society, and Post-Communist Society” (delivered to Roundtable on “The Meaning of Rights in the Former Soviet Bloc Countries,” Institute for Constitutional & Legislative Policy, Central European University, Budapest, June 1994) (forthcoming in Andras Sajo, ed., Rights East and West (Budapest: Central European University Press, 1995) (“Krygier & Czarnota, ‘Rights’”). On Solidarity more generally, see David Ost, Solidarity and the Politics of Anti-Politics (Philadelphia: Temple University Press, 1990), and Robert Zuzowski, Political Dissent and Opposition in Poland (Westport, Conn.: Praeger, 1992) (“Zuzowski, Political Dissent”). Google Scholar

29 Cf. Robert D. Putnam, Making Democracy Work: Civic Traditions in Modern Italy 243 (Princeton, N.J.: Princeton University Press, 1993).Google Scholar

30 Cf. Wiktor Osiatyński's remarks in the valuable collection of discussions—I. Grudzińska-Gross, ed., Constitutionalism in East Control Europe 20 (Bratislava: American Council of Learned Societies, Czecho-Slovak Committee of the European Cultural Foundation, 1994)—held in Warsaw, Budapest, Prague, and Bratislava, in December 1992 and January 1993:Google Scholar

If we go back in history and look at Polish tradition, then we find that Poland indeed had rights for the nobility. Yet, for a very definite reason, this was not a constitutional tradition: the means of upholding these rights was the right to mutiny and rebellion. Polish nobility had the right to rebel against the king…. This tradition is strong, and it is a tradition of the extreme. Constitutionalism, as I understood it—which is also the way it is understood in the world—would put between rebellion and subjection five, ten, seven levels of institutions, to which the person whose rights or privileges have been breached can appeal. In Polish tradition of the 16th and 17th century, there were few such institutions and this lack led to, among other problems, the failure of the Polish constitutions to be implemented.Google Scholar

31 Cf. works cited in note 3.Google Scholar

32 Cf. discussion in note 20.Google Scholar

33 Actually the gloom seems to be regional rather than ethnic. See Sajo, 22 J.L. & Soc'y (cited in note 3).Google Scholar

34 George Orwell, Coming Up for Air, pt. 1, ch. 3, at 24 (London: Secker & Warburg, 1954). The point was repeated, in a slightly more dramatic version, by Orwell's friend Cyril Connolly, according to whom, “imprisoned in every fat man a thin one is wildly signalling to be let out.”Google Scholar

35 There are other reasons to wish for fiercer editing. Kurczewski thanks his editors for their “careful work” (at xix), but there are an astonishing number of typographical errors (I counted about 50) for which Kurczewski's English-language editors must share responsibility. Some are trivial, some are rather funny. But none should have occurred. We learn of the “atrocities of the NKVC” (at 56). There are “cases that would be known to the pubic” (at 90). (No, not that sort of case.) We are told that the Stalinist prosecutor, Vyshinski “might look, to an uninformed reader, like a defendant of old-fashioned, almost bourgeois-like legality….” Unfortunately, Vyshinski never looked at all like a defendant. There is the “all-persuasive principle of institutional dualism” (at 161) that appeared to persuade no one but was found everywhere. We hear of “ethnical development in children” (at 372), which of course also occurs, but is not what Kurczewski is talking about. The characteristic randomness Poles always display with English definite and indefinite articles (which Polish does not have) is faithfully reproduced. There are grammatical errors, and even a Stalinist slogan which appears in Polish and is mis- and misleadingly translated into English (at 105). There are several words which overlap, but do not coincide, with English equivalents. There are several embarrassing indications that chapters which originally appeared as essays have not been completely revised: “Today… (at 320); “At the time of writing” (at 319, 326) in relation to events of the mid-1980s. Overall the book is handsomely produced, and I am delighted the Clarendon Press chose to publish it. However, they could have done a better job.Google Scholar

36 But see Roman Laba, The Roots of Solidarity (Princeton, N.J.: Princeton University Press, 1991), and Zuzowski, Political Dissent (cited in note 28).Google Scholar

37 Michael Walzer, Thick and Thin: Mural Argument at Home and Abroad (Notre Dame, Ind.: University of None Dame Press, 1994).Google Scholar

38 Robert Bellah, Habits of the Heart: Individualism and Commitment in American Life (Berkeley, University of California Press, 1985).Google Scholar

39 Clark & Wildavsky, Moral Collapse (cited in note 16). I have discussed this theme of the book in “A Morality Tale,” 23 Nat'l Interest 96 (Spring 1991).Google Scholar

40 Clark & Wildavsky, Moral Collapse 16–17.Google Scholar

41 In the passages which follow I draw upon Martin Krygier & Adam Czamota, “Rights” sec. 3 (cited in note 28).Google Scholar

42 Kolarska-Bobińiska, Widomośći Polskie, 25 April 1994 (cited in note 4).CrossRefGoogle Scholar

43 CBOS, Cry Potrzebna Jest Nowa Konstytucja? and id., Co Polacy Wiedzą o Konstytucji? (both cited in note 4).Google Scholar

44 See Adam Czarnota & Martin Krygier, “From State to Legal Traditions? Prospects for the Rule of Law after Communism,”in Frentzel-Zagórska, From a One-Party State 91 (cited in note 18); and sources cited in note 3.Google Scholar

45 See the remarks of the former Chairman of the Polish Council of Ministers, Jan Maria Rokita, quoted in Krygier, 40 Australian J. Pol. & Hist., at 114–18 (cited in note 3).Google Scholar

46 See Ewa Łętowska, “The Ombudsman and Basic Rights,” 4(1) East Eur. Const. Rev. 63 (Winter 1995); id., Jak zaczynal Rzecznik Praw Obywatelskich (Lodz: Master, 1992); id., Boba na swieczniku (Warsaw: Polska oficyna Wydawnicza, BGW, 1992); id., Po co ludziom konstytucja (Warsaw: American Council of Learned Societies & Stefan Batory Foundation, 1994).Google Scholar

47 Professor Zielinski has recently somewhat tarnished this independence by his decision to run (unsuccessfully) for the Polish Presidency while remaining Ombudsman and by the manner in which he conducted his campaign.Google Scholar

48 This might Serve as confirmation of Tyler's thesis, based on American data, that people tend to support public institutions which appear to be fair, particularly procedurally fair, independently of whether they have achieved, or expect to achieve, favorable outcomes from them. In the stratified circumstances of postcommunist societies, and given that poor governments cannot easily satisfy great expectations, Tyler's inference from these data is particularly suggestive: “fair procedures can act as a cushion of support when authorities are delivering unfavorable outcomes.” Tom R. Tyler, Why People Obey the Law 107 (New Haven, Conn.: Yale University Press, 1990). It would be nice if postcommunist public elites acted virtuously because they thought they should. Failing that, they might at least be persuaded that it is in their interests.Google Scholar