From 'Civil Society' to 'Europe'

A Sociological Study on Constitutionalism after Communism


In East Central Europe, constitutionalism comprises an effort by postcommunist societies to consolidate around certain values, principles, and rules that would facilitate the formation of a new political architecture as well as a new political identity for their countries. Based primarily on the experience of Poland - in comparison with other East Central European countries - this book debates the specific features of postcommunist constitutionalism. The result is a theory of reflexive constitutionalism (informed by the sociological theory of reflexive modernization) which assesses critically the intellectual resources as well as the consolidating potential of the classic foundations of liberal democracy within the reality of postcommunist transformation.

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Grażyna Skąpska Ph.D. (1978) in legal sciences (sociology of law), Polish Academy of Sciences, is Professor of general sociology and sociology of law at the Jagiellonian University, Kraków, Poland. She has published extensively on postcommunist transformation, including privatization of state-owned property, restitution of property rights, dealing with the past human rights violation, implementation of the rule of law after the collapse of communism.
Introduction: The Objectives of this Book
Constitution and constitutionalism: a sociological approach
Postcommunist dilemmas and sources of popular frustration
Theoretical background
Empirical context

Prologue: Between “Civil Society” and “Europe”: Round tables in East Central Europe as Political and Legal Events
Round tables as political events
Round tables and the legality of the transformations
Constitutional outcomes of round tables
Consequences of the round tables in subsequent change

Chapter One
A Constitution as a Theory of Society within Society

Postcommunism critiqued
Constitutional instrumentalism
The “Empty Space” proposition as justification of constitutional instrumentalism
Non-fictive, context-bound reflexive constitutionalism
A constitution as a theory of society within society
Constitutional instrumentalism versus the reflexive approach to the constitution

Chapter Two
Stalinist Constitutionalism

Typical features of Stalinist constitutionalism
Theoretical foundations of the Stalinist political system
Axiology of Stalinist constitutionalism
System legitimization: the unarticulated social contract and negative constitutional consensus
Stalinist constitutionalism and the need for a new constitutional semantics

Chapter Three
In Search of a New Semantics: Discursive Resources of Postcommunist Constitutionalism

Recent constitutional history: the context for democratic constitutionalism
Recent constitutional history in its narrow sense
The return of civil society, reintroduction of morality, and renaissance of history in the public sphere after the Gulag experience
Interpretations of the rule of law
The Eastern European syndrome: a brief outline of difficult legacies, old and new
The semantic endowment of the new constitutions

Chapter Four
Settling Accounts with the Past and the Dilemmas of the Law-Governed State

The constitutive potential of the difficult past: the right to truth, to remembrance, and to restitution of property rights as part of identity restoration
Two legacies of Stalinist totalitarianism
Structural and mental legacies of the semantics used to legitimize state crimes
Legacies of mass scale expropriations
Knowledge as power: the paradoxes of democracy and model approaches
Dilemmas of the law-governed state principle
“Alienating justice” or a positive constitutional consensus?

Chapter Five
Dividing the Cake: The Constitutionalization of Economic Order

Privatization in the eyes of economists and sociologists
Institutional optimism and sociological realism
Anarchy, semi-legalized anarchy, and blurring the line between state-owned and private property
The constitution versus mundane economic processes after the collapse of communism in East Central Europe
Conclusions: written constitutions and emerging realities

Summing up: Thirteen Theses on Postcommunist Constitutionalism

Appendix One
Election participation in Poland, Hungary, the Czech Republic and Slovakia

Appendix Two
Referenda participation in Poland, Hungary, the Czech Republic and Slovakia

Appendix Three
Trust in governments and courts

Appendix Four
Comparison of Evaluations of Democracy and Market Economy in Action is Particular Countries


All those interested in postcommunist transformation, and generally sociologists, political scientists and constitutional lawyers.
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