A problem of their own, solutions of their own: CEE jurisdictions and the problems of lustration and retroactivity

Abstract

The idea of the rule of lawis very rich and deep, allowing much legitimate variation in its implication. When a difference between local constitutional interpretations takes one system out of the category of "a state governed by the rule of law" but leaves another within it is essentially a judgment call. I am concerned with the pragmatic question of what precise rules or constitutional court decisions are necessarily implied by the avowed preference "non sub homine, sed lege e dei." No analysis of the problem I address could be intellectually honest were it to insist on a simple and uniform definition being applied everywhere in the CEE area. In the end if will be for the reader to decide whether, for example, the differences between the Czech and the Hungarian approach to the rule of law falls within the necessary area of what the ECHR has called a "margin of appreciation", or whether we must rule one or other state to have failed the test. What is very important indeed is how the Constitutional Courts have gone about assessing the legitimacy of the policies covered here. What the rest of Europe will gain, or suffer from, is very much a matter of high doctrine. Such doctrine constitutes further building blocks in the constructive writing of democratic political theory by courts as they move towards an international constitutional common law. What the Hungarian, Czech, Polish, Slovenian, Lithuanian and Estonian High Courts have thought when asked about the constitutional validity of some methods of dealing with the problems of the past could be of enormous value in this long term endeavour. At the very least their difficulties draw our attention to how little worked out are many of our legal assumptions and icons in this area. © 2006 Springer.