Accueil RED&S


Christophe Agostini
allocataire de recherche à l'Université de Paris X-Nanterre, Centre de théorie du droit

Séminaire Erasmus Cerisy-la-Salle juin 1995



The new constitutions of the East European countries are particularly remarkable on the one hand for the length and the exhaustiveness of their declarations of fundamental rights and on the other hand for their elaboration of the procedures protecting these rights : specific procedures for the amendment of the declarations, standing authoritative bodies such as constitutional courts,  ombudsmen  to sanction them, etc. Those declarations and their guarantees provide criteria by which to judge the quality of the  democratic transition  undergone by these countries, which judgement partially determines, in part, Western economic aid and/or the possibility of membership of European organizations such as, for example, the Council of Europe.

As a consequence, one of the questions that is currently raised is whether such declarations are effective or not. That question is a matter of legal sociology or political science. A properly theoretical question would be : what are the conceptions of the efficacy of the fundamental rightsí declarations in the East European countries ?

We will adopt a Weberian idealtypical approach, through two types that will legitimate our description of the conceptions of the efficacy. The first one, called  normative  (Troper, 1978) deals with the idea of the constitution as a collection of compulsory norms, whose application is controlled by a court. t is no more than the traditional definition of the State of law . The second one, called  mechanistic  (bid), refers to XVth century constitutionalism. For Madison or the members of the French constituant Assemblies, a constitution is no more than a balance of powers between authorities which participate in the legislative function with differing interests. Such a system should, according to this view, preserve the structure of the social order which corresponds to the political organization, whatever the intentions of the actors.

These both types can be used to analyse the intentions of the constituant power ; but they also can be used as two point of view on any constitution.

We would like to show that the mechanistic point of view will render an account of the specifics of the Eastern constitutional statements of rights far better than the traditional normative conception.

* *

Except for Poland, all the East European states do have remarkable declarations of fundamental rights compared to what exists in Western countries. Their content reflects a fundamental political, economic and social transition. Some American authors even use the phrase  democracy-rule-of-law-market-economy  to describe their exhaustiveness. ndeed, they cover civil, political, personal or collective rights and liberties; economic, social and, cultural rights and even  the right to a healthy and favourable environment  (Bulgarian Constitution, art. 55).  Humanism  is also one of the  fundamental values  of the Macedonian constitution (art.9).

The efficacy of such rights comes, firstly from their self-declared legal and compulsory characteristics, always expressed with solemnity, aimed at inspiring respect. Secondly, some specific procedures have been instituted in order to protect those rights : constitutional courts, of course, but also  ombudsmen  or procedures of revision more complex than what exists for ordinary statutes or even for constitutional provisions.

ï  The specifics of the constitutional courts rests in their unusual competence and powers to  protect the constitutionality  (Czech Republic, art. 83) of numerous legal acts, before or after their enactment : statutes, acts of the central or local administration, international conventions (Hungary), constitutional amendments (Rumania),  the jurisdictional disputes among legislative, executive and judicial branches  (Croatia, art. 125-5) or the programmes of political parties. These acts may be submitted to the courts by political, judicial authorities like courts or prosecutors, by administrative authorities or by the citizens themselves. The courts shall declare null and void any proposed provisions that contradict the constitution, and the Hungarian court - as the Polish one - shall also answer questions about the interpretation of the constitutional provisions - even during a parliamentary debate. The Hungarian court also has competence to order the Parliament to take a law if it  has failed in its legislative duties  (Constitutional court Act, art. 59).

On the contrary, these organs are not always absolutely independent : the Polish judges may for instance be removed by a political authority for a violation of the constitution. Similarly, in Lithuania, the Parliament can remove judges by an impeachment procedure for the same reasons (art. 74).

Last but not least, the decisions of the Polish and Rumanian courts may be overruled by a parliamentary vote : a statute struck down by the courts can be brought back by the Parliament, which can override the courtís decision by a two-third majority, making the law valid.

ï  The second important guarantee consists in the constitutional revision procedure. Some constitutions adopt a more specific one for the adoption of amendments to the declarations of rights. n Estonia for instance, fundamental rights shall only be amended by referendum. n Russia, the first chapter about the  foundations of the constitutional order  and the second one about  the rights and liberties of the man and citizens  shall be amended only by a specific organ, the Federal Assembly. Furthermore, the ordinary constitutional rules shall not contradict these foundations (Art. 16). We can therefore define the existence of a hierarchy between some basic provisions called  meta-norms  on the one hand, and the ordinary constitutional rules on the other, either because of the existence of a more complex procedure to amend the basic norms, or because they render the ordinary constitutional rules valid. But nevertheless, they cannot be called superconstitutional norms, since those provisions belong to the constitutional text and may always be modified by the constituant power. t is not different in Rumania, whose constitution establishes that  no constitutional revision may result in the suppression of the fundamental rights or liberties of the citizens or of their guarantees  (art. 147) and, even, that the constitutional court may declare all constitutional amendment in contradiction with these meta-norms null and void. tís no different in the Czech Republic where  any change of the essential attributes of a law-abiding state is inadmissible  (art. 9). n all these cases the constituant power may supress these restrictive norms then it could freely amend the constitution. These restrictive norms, usually regarded as bounderies imposed upon the constituant power, are in fact more complex procedures of constitutional revision.

On the other hand, a superconstitutional rule would be a norm which would not derive from the constitutional text and whose validity would be independent of any act of the constituant power (Troper, 1995); that is to say, natural rules.

What is interesting in Eastern countries is the tendency of a few courts to regard some fundamental rules as natural ones that would found the validity of the legal order. The Polish constitutional court for instance, when it establishes the meaning of the constitution, takes  social ideals and values  (Decision of the Constitutional Tribunal, 9 March 1988) into account, because the constitution refers to and legalizes  social and political ideologies  (bid)  and even (considers) an extra-legal normative system  (L. Garlicki, about the decision of the 30th November 1988). Such provisions could be analysed as superconstitutional ones in a logical sense only, as they are used to interprete the constitutional provisions, but not in a legal sense as they have never been used to declare a constitutional amendment null and void (Troper, 1995).

* *

Generally speaking, when scholars analyse the declarations of fundamental rights and their guarantees, their work consists only in a description of the legal provisions or the decisions of the courts : the constitution is compulsory because it defines itself as a binding norm. Such a work, typically a normative point of view, is underlain by the following and unacceptable presuppositions :

ï  Firstly, an essentialist conception of norms whose fundamental characteristic is to be compulsory. The law possesses an inherent moral force constraining the subject. This ideological presupposition may be illustrated by Alf Rossís analysis of Kelsenís concept of validity (A. Ross, 1961). For Kelsen, the constitution is valid because of the prescription of the supposed  Basic Norm  which establishes that  one ought to conduct oneself as the historically first constitution prescribes  (Kelsen, 1964). Alf Ross criticizes Kelsenís conception of validity because his definition of the basic norm reveals a moral or jusnaturalistic conception of the validity of the legal system. He therefore calls Kelsen a quasi-positivist.

ï  The scholars similarly describe the existence of natural rules. Such a conception requires firstly an ethical cognitivism, which means that the principles of natural law may be objectively discovered by some process of cognition ; and, secondly, a traditional theory of the interpretation phenomenom. This latter presupposition is also necessary for the consistence of the argumentation : if natural rules do exist, they shall also, like every legal rule, be interpreted by the constitutional organs. And if the interpretation is an act of will, the meaning of those rules will be the one which will be determined by the organs ; this is unacceptable for these authors. The activity of the judge is then seen as a logical and mechanical one, with no discretionnary power or moral evaluations. The same conception of the interpretation is presupposed when the scholars describe the interpretative techniques or method used by the constitutional judges in order to determine the meaning of an  unclear  provision .

The second problem of such a traditional point of view, which simply consists in a description of the legal norms, is that it leads the authors to make some unsatisfactory valuations instead of trying to understand the specificities of the Eastern constitutional systems. For instance, Dieter Grimm criticizes the exhaustiveness of the declarations because of their naivety, when he writes that  most experts and politicians in Eastern Europe are not aware enough of the fundamental difference between normativity and reality. Law does not operate on the level of reality  .

Because of their enormous powers, the constitutional courts are regarded as a  subsidiary institution of the legislative power  (S. Pashin) and therefore not as courts anymore. On the contrary, in the case of Poland and Rumania, a French author, François Julien-Laferrrière analyses the possibility for the Parliament to overrule a court decision as a lack of understanding of the hierarchy of normsí principle. Similarly, M.F. Brzezinski considers this procedure as a  limited form of judicial review .

* *

However, it is possible to avoid such valuations or contestable positions, by using the mechanistic point of view to analyse the efficacy of the fundamental rightsí declarations.

ï  f we agree to consider interpretation as an act of will, a construction, and the constitution as an organization of a balance of powers between authorities, the government, the Parliament, but also the constitutional court, all that take part in the legislative procedure, we can understand more clearly that each organ of this system has many opportunities to influence or to counter the decisions of the others : the important powers of the courts, the appointment procedure of the judges, the use of the removal procedure motivated by political considerations - or the threat to use it that way - the adoption of a constitutional amendment in reaction to the annulment of a statute, and, in reaction to the former, the control of the  constitutionality  of the amendement. Such an analysis similarly authorizes the understanding of the overruling procedure, the decision of the court acting as a veto.

ï  This route has been taken by a few scholars. For instance, with reference to the Bulgarian court, A. Kalarova insists on the fact that  it was not the protection of human rights, but the balance of powers that was the major concern of the framers when the mechanism for the selection of the constitutional judges and the authority entitled to appeal to the court were defined.... n a sense, the court has acted as a second House of the Parliament . Furthermore, Jon Elster considers the overruling procedure as a  backdoor technique... by which the assembly may enact de facto amendments of the constitution without going to referundum . But this second interpretation presupposes that the constitution is no more than the judges say it is. This latter allows one to consider this procedure as a  system of checks and balances, aimed at preventing undemocratic rule by the judiciary  ( Elster, op. cit. ). M.F. Brzezinski analyzes the Polish procedure in the same terms, which  allows the Parliament to prevent the Tribunalís application of judicial review from overstepping politically acceptable limits  ( Brzezinski, 1992). We can also understand the decision of the Rumanian Supreme Court of Justice (14 January 1991), which refered to the  principle of separation of powers  that confers  the power and the obligation to control the constitutionality of statutes  to courts,  as a natural and logical result of their activity... . This decision is quite similar to the one of the American Supreme Court, Marbury v. Madison, with this difference that the American judges refer to the principle of the hierarchy of norms.

Such an explanation in terms of balance of powers and relations of force is unsufficient, for the main following reasons :

ï  f the conclusion is that the constitution is no more than the judges say it is, we do only refer to the American or Scandinavian  legal realism . The declarations of rights would only be the sum of  empty categories  , used in order to legitimize the decisions of the state organs. This approach ignores the specific constraints of the legal reasonning.

ï  Secondly, the mechanist type has been built in reference to the XVth century conception of the constitution and its efficacy. Thus, the constitution should organize the relations between the organs in a way to preserve the social structure and the declared rights. On the contrary, in the East European countries, the declarations of rights are enacted in order to modify the social, political and economic structure.

Then we must, in a context of transition, and if we want to use that methodological instrument, wonder about the status and the function of a declaration of fundamental rights in a constitutional system which is considered as a mechanism ; that is to say, where the decision-making process is complex, and where the organs of this process are legally free.

ï  The specifics of the XXth century balance of powers, especially in Eastern countries, is that one of the organs of the legislative function is a judicial one. Consequently, the syllogistic reasoning mode used by the courts will be more generally used by the other organs, because it is the only admissible one by all of them. t is certainly not a legal duty, but a material constraint imposed by the necessity of convincing the best way. As it is a syllogistic reasoning, the decisions and particularly the statutes will be motived by reference to the constitutions and to the declarations of fundamental rights. t is probably the meaning of the thesis which upholds that  politics are caught by law  (L. Favoreu).

But it is only the first step of this judicial argumentation. The choice of a particular constitutional provision to justify a decision (the major of the first syllogism) must itself be justified by another principle (the major of a second syllogism) considered as superior. That is the function of the fundamental rights ,  interpretation methods , extra-normative system , superconstitutional norms , and finally natural rules. Those  rules  are only meta-arguments in the debate, and not meta-norms, because their function is only persuasive and has nothing to do with validity.

ï  As each organ of the balance of powers may use such a reasoning, the choice of a principle has to be presented as evidence, an objective conclusion, in order to persuade, and not as an act of will (Meunier 1994); it is the main explanation of the success of the traditional theory of interpretation, of the theses of the applicability of logic to law, or of an ethical cognitivism, etc. Such reasoning is the only way for these organs, to found and fully exercise their power. But it is also a strong constraint, because a persuasive argument shall belong to an acceptable register to the other organs, but also to the community of scholars and the public opinion. That is to say, the values commonly and roughly accepted by a society at a particular moment. Those authorities have then an interest in finding some common meanings for the declarations of fundamental rights which are a sum of  empty categories  before their interpretation.

t is probably the way by which these values can be integrated into the content of law.

* *

The particularity of these specifics in Eastern European countries is probably that they are absolutely not specific. That is to say that the conclusions that we have reached can be extended to the Western states. f the latter do not live at a time of transition, the idea of the progress of the state of law and the expression of the need for a better protection of fundamental rights does exist there. More generally, these conclusions do illustrate the thesis of a link between the normative process and the content of law.


Brzezinski Mark F., Poland : constitutionalism within limits, East European Constitutional Review (EECR) 1993, vol.2, n°2.

Elster Jon, On majoritarianism and rights, EECR, 1992, vol.1 n°3.

Grimm Dieter, Constitutional Revolutions in Eastern Europe, EECR, spring 1992, vol.1, n°1.

Garlicki Leszek, La jurisprudence du Tribunal constitutionel polonais en 1998, in Annuaire nternational de Justice Constitutionnelle, 1998, vol. V.

Jones John Paul, The Tribunal in Tirana, EECR 1993, vol.2, n°2.

Julien-Laferriere François, La constitution roumaine du 8 décembre 1991, ou le difficile apprentissage de la démocratie, in Revue du Droit Public et de la Science politique, 1991 p.1217.

Kalarova Rumyana, Bulgaria : a self-restricting court, EECR 1993 vol.2, n°2.

Kelsen Hans, Théorie pure du droit, Dalloz, 1965, trad. par Ch. Eisenmann.

- The basic norm as fiction (1964), in The Juridical Review - The Law Journal of Scottish Universities, 1980, part 2.

Meunier Jacques, Le pouvoir du Conseil constitutionnel. Essai díanalyse stratégique, LGDJ, 1994, préf. M. Troper.

Pashin Sergy, A second edition of the constitutional court - roundtable : redesigning the Russian court, EECR, vol.3, n°3&4.

Ross Alf, Validity and the conflict between legal positivism and natural law, Revista juridica de Buenos Aires, 1961, V.

Troper Michel, La constitution et ses représentations sous la Vème République, in Pouvoirs, 1978, n°4.

- Les principes supraconstitutionnels, in Revue nternationale de Droit Comparé, 1994.

Winczorek Piotr, Discussions sur la nouvelle République de Pologne, SDNL

© Réseau Européen Droit et Société