From renaissance Poland to Poland's renaissance.

• Author: Cole, Daniel H.
• Position: 1999 Survey of Books Related to the Law

THE STRUGGLE FOR CONSTITUTIONALISM IN POLAND. By Mark Brzezinski. New York: St. Martin's Press. 1998. Pp. 276. $49.95.

INTRODUCTION

Poland is located in Eastern Europe -- the "other Europe"(1) -- which shares a continent, but seemingly little else, with Western Europe. Most histories of Europe, legal histories included, are actually histories of Western Europe only.(2) The "euro-centrism" some scholars complain about is, more accurately, a "western eurocentrism." The eastern half of the continent is ignored like the embarrassing black sheep of the European family.

Economic historians have described Eastern Europe as a "backward" place, where feudal and mercantilist economies persisted as Western European economies modernized and industrialized.(3) In geopolitical terms, Eastern Europe has been characterized as a region of "underdevelopment and dependence," "striving after the `modernity' seemingly embodied in certain of its western neighbours."(4) In the popular imagination Eastern Europe is "the old country" -- a region populated by poorly educated and xenophobic peasants, ruled first by nationalist despots and later by communists.

The communists are gone now, and the countries of Eastern Europe supposedly are "learning" about constitutional democracy. American and West-European "experts" flocked there after the fall of the Berlin Wall (with mostly good intentions) to teach the natives about democracy and constitutionalism.(5) In many cases, these teachers were as ignorant of local culture and history as they were condescending. As German constitutional law Professor Hans Mengel has stated, however, "[y]ou cannot come in and prescribe a constitution.... It comes out of the cultural background. You have to take care of what the society is like in the moment."(6)

Even internationally renowned legal scholars, such as Richard Posner and Cass Sunstein, have felt obliged to give advice on reforming legal systems to countries about whose histories and cultures they admittedly know little.(7) Judge Posner has urged the "newly liberated" countries of Central and Eastern Europe to focus on those "universal negative" rights which are relatively inexpensively enforced, such as the right to property.(8) Other rights, including some "negative" rights that are taken for granted in relatively wealthy democracies, such as rights that protect against the wrongful incarceration of innocents, should be disregarded (or only minimally protected) until they can be better afforded.(9) Imagine the reception this kind of economism about the rights of criminal defendants would likely receive in a country like Poland, where habeas corpus protections were provided for more than half a millennium before the imposition of communism,(10) and where in 1981 as many as 580 of every 100,000 Polish citizens were imprisoned (as compared with 212 per 100,000 in the U.S. and 25 per 100,000 in the Netherlands),(11) many of them for no reason other than political dissent.(12)

Professor Sunstein agrees with Judge Posner about the dangers posed by the adoption of costly "positive" rights in Central and East European constitutions. He considers the combination of "[a] chaotic catalogue of abstractions from the social welfare state" with "traditional rights to religious liberty, free speech, and so on" to be "a large mistake, possibly a disaster."(13) Sunstein is particularly concerned that socioeconomic constitutional rights -- such as the right to free medical care and the right to a clean environment -- are notoriously difficult to enforce; their lack of enforceability could have a demoralizing effect on society, which could jeopardize the perceived legitimacy of a constitution in toto. Consequently, he has counseled Central and East European countries to set their constitutional sights on providing "(a) firm liberal rights -- free speech, voting rights, protection against abuse of the criminal justice system, religious liberty, barriers to invidious discrimination, property and contract rights; and (b) the preconditions for some kind of market economy." One does not have to disagree with the merits of Sunstein's prescription, however, to recognize that it had little or no chance of being followed for reasons that have to do with history, culture, and existing institutions, all of which his analysis neglects.(14)

A common constitutional prescription would be unlikely (to say the least) to work for all the countries of Central and Eastern Europe. These are not homogeneous societies sharing common histories, cultures, institutions, and values. To the contrary, they are extremely diverse. And it has always been a foregone conclusion that each country would adopt a constitution reflecting its own history, culture, and values, and not necessarily those of western advisers.

Moreover, not one of the postcommunist countries was "starting ... from scratch" in constitution writing, as U.S. Supreme Court Justice Sandra Day O'Connor asserted in a 1995 speech.(15) Constitutions, like other institutions, are not composed on blank slates but are shaped by existing social, historical, intellectual, and institutional forces. As the economist Lee Alston has explained:

Institutions are historically specific, and for this reason it is necessary to be sensitive to historical context. This is particularly true for the dynamics of institutional change. Much of the developmental path of societies is conditioned by their past. Even after revolutions, institution builders do not start off in a historical vacuum. At any moment in time, actions are constrained by customs, norms, religious beliefs, and many other inherited institutions. This is as true for the leaders in Eastern Europe today as it was for Augustus Caesar.(16) Fortunately, some Central and East European countries have endogenous histories of democratic constitutionalism on which to build.

Consider Poland, the first country to cast off communism, and among the last to enact a wholly new constitution.(17) Unbeknownst to most recent would-be advisers, Poland was the second country in the world, and the first in Europe, to adopt a written constitution.(18) Not only did Poles enjoy protection against arbitrary arrest and imprisonment almost 250 years before the English supposedly "invented" habeas corpus, but they elected their Kings by a politically dominant parliament (the Sejm) while the rest of Europe still suffered absolute monarchs. Consider Poland in light of Mark Brzezinski's(19) new book, The Struggle for Constitutionalism in Poland, which tells the story of how each time the Polish people have been left to their own devices -- i.e., between invasions by Germans, Austro-Hungarians, Swedes, and Russians -- they have established increasingly democratic institutions and protected civil liberties.

What follows is a review of Brzezinski's book, an assessment of its contribution to a better understanding of the historically and culturally contingent nature of the constitution-making process, and an appraisal of its contribution to a less western euro-centric understanding of legal history. Not only is Poland's history of constitutionalism western in its orientation, but Polish legal and constitutional innovations, particularly those regarding civil and religious liberties, predate similar developments in West European countries. Indeed, during the Renaissance and Reformation eras, Poland's protodemocratic and libertarian legal and political theories and practices significantly influenced efforts to reform absolutist monarchies in Western Europe. And they continue to influence constitutional developments in postcommunist Poland.

In conformity to Brzezinski's book, this Review proceeds chronologically, beginning with the unwritten Constitution of Renaissance Poland and concluding with a brief glance at Poland's new postcommunist Constitution, adopted in 1997. Along the way, we will learn several things: first, Poland has had a long, sometimes glorious and sometimes tragic, history of constitutionalism; second, Polish constitutionalism has always been decidedly western in its orientation; third, Poland has been -- and continues to be -- quite innovative in its constitutional theories and practices, especially in the area of civil liberties; and, finally, Polish constitutionalism has at times been influential in Western Europe. Thus, Polish constitutional history challenges the western euro-centrism of most legal historians, as well as the conventional wisdom of western lawyers that postcommunist countries are, in Justice O'Connor's terms, "starting ... from scratch" in designing constitutional governments.(20)

BRZEZINSKI'S ANALYTICAL FRAMEWORK: CONSTITUTIONS AND CONSTITUTIONALISM

Brzezinski's historical analysis of constitutionalism in Poland is prefaced with an "analytical framework" for assessing constitutionalism, which he rightly suggests to be inextricably intertwined with democracy and limited government. He discusses (pp. 7-9) definitions of the term "constitution" from Aristotle, Giovanni Satori, Carl Friedrich, and Karl Loewenstein, in order to distinguish constitutions that are so many words on paper (such as Stalinist constitutions) from those that have real normative effect -- those whose "written guarantees are actual practices, enforced over political authorities" (p. 10). Brzezinski adopts Bonime-Blanc's list of characteristics denoting "real," "normative" constitutions: constitutional institutions exist and function as prescribed; constitutional rules governing political practice are "consistently observed"; constitutional norms, including civil rights and liberties, are enforced against violators; and government power is limited in practice by constitutional institutions such as the separation of powers, checks and balances, and judicial review.(21)

Having asserted that only democratic governments are constitutional in practice, Brzezinski hastens to add that democracies need not have...