Résumé

Pas d’espoir ? Un essai sur les théories de la globalisation et les processus de construction des institutions juridiques dans l’Europe postcommuniste

L’auteur montre que, pour les démocraties en voie de développement, un certain espoir lié à des opportunités certaines est inhérent au processus de globalisation du droit. Elle indique aussi les obstacles qui se dressent sur la route.

Complexité – Contingence – Droits – Europe postcommuniste – Globalisation – Modernisation.

Summary

The author shows how some hope linked to real opportunities for newly developing democracies is inherent in the globalization of law processes. She also indicates the obstacles that arise along this road.

Complexity – Contingency – Globalization/Localism – Modernization – Postcommunist Europe – Rights.

The concept of globalization plays nowadays an enormous role in explanation of modern phenomena and processes.

« Modernity is inherently globalising, writes Anthony Giddens, this is evident in some of the most basic characteristics of modern institutions, including particularly their disembeddedness and reflexivity  [1] . »

Globalization means therefore globalization of the modernity, or currently late modernity effects in form of the growing flexibility, and even fluidity as well as abstractness and discontinuity of institutions, and in form of equalization, and anonimization of social phenomena and relations  [2] . Late modernity is further characterized by surveillance exercised by the anonymous and abstract, controlling institutions over the real social phenomena  [3] .

Obviously then, processes of globalization take ever greater attention within the socio-legal discourse  [4] . Then it is clear : world-wide social relations are intensifying, especially those which take place on the market : not only market of goods, but also of ideas.

Together with globalization of exchange, the necessity of harmonization of intensive and complex relations emerges, that is followed by efforts to create common, supra- or transnationally valid law.

Globalization assumes a dynamics, a movement.

According to the first argument presented here, dynamics of globalization has not only endogenous sources, but results from its confrontation with a counter movement : particularization, fragmentation, with the quest for identity observable in the ever more visible importance of localism, together with protectionistic economic policies and emergence of new frontiers. Hence, in the light of the proposition based on such an argument, it is not uniquely the globalization itself, but the dynamics of the processes of globalization-localism which pose the challenge to social praxis and the real issue for sociological and socio-legal investigation.

Those counter, globalization-localization tendencies characteristic of modern world are of special interest of countries which newly won their sovereignty and independence, but which aspire to be members of supra-national organizations : the European postcommunist countries aspiring to be members of the European Community. With regard to these countries, the rather pessimistic opinions concerning either obstacles to integration or the « neo-colonial » effects of globalization are viewed. On the part of global analysis of the international economic system development, the costs of integration and the market competition are stressed as the main barriers to integration of postcommunist countries within the Union  [5] . On the part of sociological globalization theory, predominantly in its neo-marxist version, the neo-colonial effects of the world-capitalist system on those countries economy and culture are of concern  [6] .

Moreover, in the very similar vain, the « neo-colonial » effects of supra-national integration, especially with regard to political sovereignty and cultural identity are also of strong concern of the representatives of particularistic, culture, identity and local tradition oriented approach. Within it, the issue of state sovereignty is raised, and also issues of particularistic, rooted in the local culture and traditions legitimacy, validity of law and its authority.

The question about any hope, that is about any possibility of integration of those countries into the broader, supranational framework, and simultaneously the question of any possibility of positive outcomes of that integration are then on the agenda of politicians and scientists. These questions would be answered with great caution by the representatives of economic approach, and negatively as well by the representatives of the neo-marxist theories (unless the capitalist world system changes to a socialist one) as by the representatives of particularistic, culture and tradition oriented approach.

According to the second argument of this essay however, social processes are contingent. Also globalization processes do not have prescribed and determined « neo-colonial » outcomes, hence they are always confronted with social, political and economic environment in which they occur. Predominantly, their outcomes are influenced by local cultures, local traditions and by social actors : especially those who take part in decision-making processes. In the light of such an argument, the globalization theory itself, especially, but not uniquely, in its neo-marxist version, concerned with the core-periphery differentiation and the development of the capitalist world system, is characterized by serious theoretical shortcomings. Let me enumerate them.

The first of those shortcomings consists in simplification of conceptual framework, in the deterministic concept of development and the « essentialist » concepts of capitalism : the former as a process resulting from the operation of some systemic forces, the latter as having definite form and content. The second shortcoming of globalization theories consists in the fact that they take no account of human factor in the process of social change, they do not account of societies composed of people, but speak rather about « systemic forces » and « movements ». The third consists in their unilinear concept of development and globalization, as determined by the endogenous, systemic factors and not as resulting from the dynamics globalization-localization processes. The fourth consists in their simplified and functionalist concept of institutions, especially of law.

In the light of the argument stressing contingency of social processes however, and the criticism of neo-marxist versions of globalization theories, the form and contents of the response of postcommunist societies to the challenges but also to the potential opportunities opened by inter-nationalization of relations at least to some degree correlate with traditions, local legal cultures, social mentalities, ideologies, and intelligent reactions of their political elites to neo-colonial challenges and civilizational potentials of globalization of law.

According to the third argument, in the globalization processes not only menaces and threats, but also potentials are inherent. With regard to the globalization of law the possible threats are well described by sociological theory : it is maintained that with the intensification of exchange, and the growing complexity of the global market, social relations are to the ever greater extent regulated and controlled by anonymous, abstract and « disembedded » legal institutions  [7] .

On the other hand however, globalization processes are not confined to the exchange of commodities. Globalization has a potential of exchange of ideas, particularly ideas concerning social and civic rights, of enlargement of public discourse about those rights, and of creation of the supra-national or trans-national mechanisms of rights creation and application.

Those potentials of the processes of globalization, once actualized, open the new possibilities for the justification and legitimation of abstract and disembedded supra-national or trans-national legal institutions.

The aim of this essay is then to show some theoretically possible hope, some opportunities for the newly developing democracies, inherent in the globalization of law processes, but also to indicate impediments on this road. The essay itself has a form of a general hypothesis, and the formulated suggestions concern exploration of possibilities inherent in the concept of globalization.

To import some concrete context to the abstract concept of globalization, let us consider arguments in a debate currently taking place in Poland : one of those countries which actually strive to enter the strong supra-national economic, political and military organizations, and which try to become partners in the world exchange. The opponents in this debate are colloquially called « Europeans » and « Patriots ». Arguments of those two collective actors will be presented in a simplified, ideal-typical way  [8] .

The « Europeans » argue for a quick alignment with the European Union, and with the NATO. Apart from the « Europeans »’ understanding of the Polish vested political and economic interests, the content of their arguments is rather broad. From the broad spectrum of argumentation, the main issues of the debate could be distilled : the « Europeans » underline the need of accelerated modernization, they emphasize the technological gap, as well as a gap of knowledge and practical skills characteristic of the postcommunist societies confronted with the developed West. The economist fraction among the « Europeans », the liberal fraction, argues for the quick transformation of the legal system in order to make it instrumental to the implementation of the developed economic institutions and to the alignment with the developed capitalist corporations. The intellectual fraction stresses the universal, and unattenable civil and human rights. The « Europeans » emphasize further the need of modernization of social outlooks and cultural patterns : they advocate for an open society, the open and free economy, free movement of people and ideas, and in such a context they oppose the local, national or religious barriers to the formation of an open society institutions. They believe in a possibility of rational social arrangements, based on the universally valid rational arguments. As they argue, in the process of creation their institutions the East Central Europeans are however not dependent on themselves, since, firstly, rights and liberties are universal, secondly, there exist model institutions in the developed countries. The point of view similar to that of the « Europeans » in Poland is very well summarized by a sociologist engaged in the process of reform in Hungary. According to her : « Considering liberties, they are already so well developed in existing liberal democracies, that the emerging liberal democracies have but to take them up  [9] . »

In their argumentation one can detect then the ideas of Enlightment : redress to universal rules of rationality, universalistic concepts of freedom, propositions to create law according to the universally binding rational rules. The « Europeans » seem to represent then the not more up to date rationalistic-universalistic outlook of the « Old, Dead White Men », such as French Encyclopaedists, the creators of the Napoleon Code, the Fathers of the xviith and xixth century liberalism.

The « Patriots » vehemently oppose ideas of taking up from the more developed countries their institutional arrangements based on the model of universalistic liberties and implementing them in Poland, so much as they oppose the idea of modernization through accommodation to the supra-national European structures and standards. That goes together with their opposition to the merging of Polish economy with foreign, or multinational, capital. More often than not, they express critical views toward liberalism, which in Poland, as well as for instance in Hungary, currently has strong pejorative undertone, and toward capitalist economy, as subordinated to the universal standards of efficiency, conflicting with national interests and national culture  [10] . The culture itself is described as Christian-national, and as such it is opposed to the « cosmopolitic » civic culture. Therefore, they oppose the idea of modernization of social outlooks and existing cultural patterns : their « americanization ». For them, the question of salient importance is the one concerning Polish state sovereignty and national identity. Consequently they oppose « unconditioned » unification with the European institutions, and express strong criticism toward the European conceptualization of universal human rights and liberties. Instead, the « Patriots » emphasize local legal traditions.

In the Polish legal context the special case of interconnections between local culture and law is presented by arguments related to law and religion, and by postulates to subordinate law, for instance law related to the freedom of expression, or to the freedom of individual decision-making, to Christian values  [11] . Within the dimension of private law the « Patriots » advocate limits to the freedom of enterprise establishment, limits to possibilities of buying real property, first and foremost land, by foreign investors. In accord with that, the law shall guarantee not the opening, but the defence against strong economic and cultural competition, it shall put limits on foreign investment, it shall protect national economy together with national tradition, and the integrity of real property in national land. They emphasize further the danger of losing of economic sovereignty through subordination to the rules of trans-national and supra-national capital, among others because of losing of political control over processes of privatization.

Therefore, the « Patriots » appeal to collective self-understanding of nation as a historically formed unity, they appeal to history as a medium for collective self-assurance, which is an obvious response to the insecurity created by the situation of transformation, and they postulate reflexive refraction in the mode of public appropriation of traditions performed in the first person plural.

Those undoubtly double-edged arguments of the « Europeans » and the « Patriots » have been confronted in Poland in a nutshell, and they quite unexpectedly turned to have very immediate and personal, economic consequences. Unresolved conflict between ideas stressing the priority of individual rights together with economic opening, even at the costs of handicaps instrumental for sell-out of state-owned enterprises to foreign investors, and ideas advocating historically based communitarianisms, together with limits to foreign investment imposed by law, and protection of national land, resulted in the hunger strike of workers of the Steel Company « Warszawa », now Steel Company Lucchini. One of the reasons for the strike, independently of the voiced rhetoric of the « selling out of national property to foreign capital » and the « vested interests of the Polish officials who concluded that deal », there have been the protracted court proceedings on the Lucchini’s legal title to the land, on which the Steel Company was built. One of the outcomes of this strike was the acceleration of court proceedings granting the ownership title to Lucchini. That in turn made possible the fulfilment of workers’ rights to participate in the privatization of the Company : Lucchini could have to begin modernization of the Company and to disperse cheap shares among workers  [12] .

Defining globalization as stretching out of time-space relations between local and distant social forms, Anthony Giddens writes : « The conceptual framework of time-space distantiation directs our attention to the complex relations between local involvements (circumstances of co-presence) and interactions across distance (the connections of presence and absence)  [13] . »

Analyses of globalization processes, investigations of the diminishing physical and psychological distances, observations of formation of inter- and trans-national institutions, of multi-national corporations, cannot then omit the simultaneous investigations of counter-tendencies visible in the particularization and fragmentation. These counter-tendencies are important for the form and the contents of our « co-presence ». Pondering upon the globalization, one has then not to oversee the growing importance of rather differentiated phenomena : regionalism in politics, together with the re-birth of nationalisms, the protectionism in the world-trade, the growing importance of local traditions which shall import the legitimacy and authority to the ever more complex social institutions. In that respect, one has to stress the growing role of ethnos in formation of political-legal structures, the growing importance of emerging local law, law issued by the local political institutions, and the growing importance of local, customary law and practices. Considering the globalization-localism processes, the latter then shall not be forgotten, then according to the results of the investigation on the development of international private law, « customary law flourishes and promotes order in many facets of modern society »  [14] .

However, the customary law or the emerging new Law Merchant pose only one neglected aspect of globalization-localization processes observed from the perspective of postcommunist Europe. It seems that they do not pose a remedium against the growing complexity and disembeddness of regulations of supra- and transnational exchange. For the author of this paper much more important is the search for the new legitimation and the new validation criteria, combined with the strong criticism of liberalism and its apparent neutrality, observable in that region. It is the quest for religious and national justification of the respective legal orders, the tendency to subordinate the law to some higher order of extra-legal rules and principles, the stress put on the specificity of legal orders of particular societies, and the definition of functions of law as protecting ways of life and cultural identities of the societies under transformation.

For political and legal practice, and for the political and legal actors, assumption of globalization-localization dynamics leads to the important practical question how to find a balance between the unavoidable globalizing aspects of the growing involvement in the economic and cultural exchange on the one hand, and the quest for specificity and self-determination, the sources of social identity and validity of institutions, on the other, and how to form political and legal institutions accordingly.

Theses concerning these counter, globalization-localization processes are contradictory. Then, according to the adherents of the globalization thesis, in the modern world one can observe globalization of the modern legal culture and convergence of the legal systems  [15] . In the light of empirical research however differences among legal cultures are stressed, next to difficulties which appear exactly in the domain of legal harmonization and integration, not only on the global, but also on the regional level : the level of the European Community  [16] .

Both of those theses contain undoubtedly a grain of truth, but especially the second one mirrors the real social processes. In the light of arguments formulated in this paper, dynamics of globalization-localism processes, predominantly observable in the domain of the operation of the legal system — understood here as the socially active legal system, composed of applied legal norms —, result from the interplay between factors derivative from the rational, transparent and universal rules of validity of cognition and accountability of social praxis, and factors which decide on the identity, and the specificity of social actions, relations and structures. Therefore, thinking about globalization within the domain of law, one has in mind the claim to universal validity and accountability of norms and decisions based on the universally valid rational considerations. Localization processes would refer to such phenomena and structures whose validity is rooted in the local cultures and traditions : predominantly those which manifest themselves in form of the already existing legal institutions, connected with them legal local traditions, and the prevailing social representations of the just social order and legitimate authority agreed upon in social communication. Localization processes reflect then plurality of ways of life and plurality of cultures.

Thanks to both types of factors, those promoting universalism and those reflecting the quest for identity and pluralism, our future is not totally determined, and social processes as well as their outcomes are contingent. If one then read that « by the end of the nineteenth century, the capitalist world economy had expanded to cover the entire planet, absorbing, it seems, all other existing historical systems. [...] This created an entirely new structural situation, since now there were no coexisting historical systems external to the one surviving system called the capitalist economy »  [17] , one can only repeat once more, that even capitalism is contingent, and that « contingency may provoke more anxiety in its failure to specify an outcome, but it surely embodies more hope in the power granted to people over their own futures. We are not pawns in a great chess game played by inexorable natural (and social) laws, but effective rooks, knights, bishops and kings and queens on a revolving board of alterable history with no set outcome »  [18] .

For the societies undergoing transformation, the question which type of capitalist economy and which type of institutional arrangements will be chosen : the Reaganite/Thatcherite capitalism of the US and Britain, the MITI capitalism of Japan, the central bank capitalism of Germany or some local version of populist capitalism is probably more relevant than the question considering capitalism at all, hence commitment to capitalism still leaves the actual results of transformation open  [19] .

And again, observing the development of the « construction of capitalism » in the three countries which are the most advanced in this process in the postcommunist Europe, the Czech Republic, Hungary and Poland, one can state great differences between the legal frameworks of economic transformation, as well as the emerging structures of property rights, instrumental for the future wealth and power divisions. There appear then three greatly different versions of a « constructing of capitalism » processes : citizenship based, work-place based and economic competence based, independently of the commitment to a « capitalism » and similar initial internal and external conditions characteristic of all those three countries  [20] .

The problem of contingency takes the attention directly to the society and to the people — actors of social processes, their commitments, ideals, ideologies, and also to the institutional structures, on which societies rest. The arguments stressing human factor and social institutional arrangements is in this paper juxtaposed with theories underlying « social movements » as instrumental for social transformation  [21] .

In particular, concerning situation of countries undergoing profound transformational processes — and the transformation of the Central and Eastern Europe poses here only one of the possible instances —, it is not uniquely the globalization of capitalism issue, but the forms of the economic and, following it, the legal transformation, the role played by local traditions and culture, social mentalities and the constellation of interests of the powerful local elites which are at stakes in transformational or reformist efforts. Consequently, studies of globalizing tendencies and processes, in order to have some explanatory value, have to take into account, together with traditions cristallized in social institutions, the cultural heritage, and not the least the moral virtues of social and political elites, and in the case of the globalization of law, virtues of lawyers, whose decisions are instrumental for the chosen « paths » and forms of political and economic development.

Those difficult to investigate factors together with the quest for local identity, the role played by religion in the quest for the new grounds of the legitimation of law, the already existing institutions which are rooted in the local culture, especially in the local legal culture, the particular traditions and ressentiments, prejudices and myths, which permeate social discurses, the civil courage and honesty of lawyers apart from their education and competences, as well as the particular, regional power constellations play the enormous role in formation of those countries future. Is the human factor not taken into account, then it becomes to be much too easy to take off any responsibility from themselves by the political elites, to justify corruption, clientism and nepotism, and to accuse the invisible forces of globalization, of all negative consequences of social reforms and failed efforts.

One cannot easily separate the universal and the historical context of globalization processes. Societies are historical phenomena, and the historically formed societies, together with their traditional institutions and values, pose the meaningful environments of legal globalization. On the other hand, personalities and value structures of performers of legal professions, especially those of « legal honoratiores » — Justices of Supreme Courts, of Constitutional Tribunals, The Ombudspersons, could have difficult to overestimate impact on the conception of fundamental rights, and consequently, on the direction of social change  [22] .

Therefore, one can easily accept the very general thesis, that « everything what is systemic is historic, every system posses time-space dimension »  [23] , but one would come to the conclusions very different from the neo-marxists. Hence there appear two separate although actually related problems, concerning historicity of social processes. Both of them regard normative arrangements, which underly social structures and which pose the framework of social actions.

First of those problems addresses the basis of legitimation and of justification of modern legal systems.

The second one addresses the problem of rationality of legal institutions.

Pondering upon contingency of globalization of law from the perspective of the possible « hopes » of postcommunist societies, and considering the historical-social and the human contexts of them, the issues of liberalism and human and civil rights seem to be of great relevance, as factors legitimazing globalization of law.

Both of them simultaneously pose components of globalization processes, and also factors instrumental for the contingency, the openness of it  [24] .

Liberalism argues for the freedom of choice, even if that freedom is limited, and in this respect it represents a purely human construction, which exists in normative orders and social ideals as long as people believe in it and construct their institutions
accordingly. Theories which stress contingency of development and which advocate liberal education oppose then the systemic concepts of society and social processes, and put a great value on law and the arrangements which promote the conscious and rational social action  [25] , as opposed to the spontaneous outbursts undertaken by « movements » whose massive action may destroy the « system »  [26] . Modern liberalism rests then on the assertion of plural reflexivity and the guarantees of pluralism in institutional arrangements, combined with the belief in the epistemological possibility of their rational creation.

From the point of view of societies undergoing transformation, issues of liberalism and rationality of creation of institutions pose however a serious problem. On the one hand, we observe efforts to implement of the very specific « lame » and poor version of liberalism, limited to few theses concerning operations of free market, without any consideration of the moral liberal theory. That version of liberalism is particularly characteristic of narrowly understood, imposed « from above » modernizational efforts, i.e. efforts aimed uniquely at the modernization of economy and its adaptation to the international market. Concept of liberalism offered by the proponents of such a poor version of it mirrors exactly the poor version of liberalism which functions as the basis of its neo-marxist criticism. It is a curious concept of neo-classical economic liberalism based on only few ideas of Adam Smith, which consider the international market operations. Absent here is the least consideration of the Smith’s theory of moral sentiments, there is no account of the great British, Scottish or French thinkers, no Hume, no John Locke, no de Tocqueville, no Montesquieu, no Rousseau, not to mention the more modern representatives of this doctrine. Such concept of liberalism eventually reiterates to the investigations of the operations of the « system », i.e. the operation of the international market, international financial institutions, and the international division of labour  [27] . With respect to the globalization of law issue, such a poor version of liberalism opens a way for conceptualization of law as a set of purely and narrowly instrumental prescriptions regulating terms of trade, tariffs, quotas, resulting from the austerity programs and monetary policies.

It is needless to say that implementation of such a « lame » version of liberalism and consequently the narrow instrumentalization of law, together with formation of legal prescriptions whose only rationale is to conform in advance to the existing supra-national rules, first and foremost to the European directives and regulations, confirms the most critical opinions regarding globalization issue, propagated in the postcommunist societies. The implementation « from above » of purely instrumental regulations, which additionally are directed against national interests, only deepens such a criticism.

The legal development of the postcommunist societies is challenged however not only by the « system », but predominantly by revival of nationalist sympathies and traditions, together with xenophobic ressentiments, which once institutionalized would made the more open and more liberal development impossible. Obviously, the second may be linked, and in fact are linked, with the first, with the growing fear of the not understandable and imposed regulations, and with the efforts to respond to insecurity brought about by those regulations in the reassessment of local, historical traditions.

In order to investigate the interconnections between the « lame liberalism » implemented in form of the purely instrumental law and the rebirth of nationalisms, xenophobia, and fundamentalism, one has to reconsider the salient components of all liberal doctrines. Those predominantly consist in the concept of individual, unattenable human and civic rights and liberties, but must presently be supplemented by the rights to identity and self realization, reflecting already mentioned growing pluralism and decentered public consciousness.

The already quoted adherent of the thesis on globalization of modern legal culture refers to the « passionate belief in fundamental rights » and observes that « modern law bristles with rights and entitlements »  [28] .

Other authors state : « Although Western in its origins, the language of rights is now a virtually global phenomenon  [29] . »

Closer look at the development occurring in postcommunist Europe contributes further to those statements. Furthermore, one can assert links between the existence of the culture of individual rights and its civilizational impact on the development of postcommunist countries, and reversely, the affinities between differentiated collectivisms and degeneration of the initial goal : creation of the more open, liberal society. First and foremost, the quest for universal rights and liberties enabled the common activity of people across nationalities, ethnicities, class divisions, professions. The most striking example is given here by the Polish « Solidarnosc ». Concerning the project of the future, one has to stress further the popular appeal of the concept of civic society in its classical form, with the stress put on universal rights, predominantly freedom of expression, and of association. Those ideas were accompanied by the « New Evolutionism », an ideology based on strong repulsion of power and revolution as a means of transformation. Instead, the ideology of New Evolutionism appealed to the universal « truth » or to the « rights for the life in the truth »  [30] . Both of them proved to be very successful, but the New Evolutionism, apart from its universalistic appeal, had proved instrumental for the peaceful transformation based on agreements, and especially for the reconstruction of the public negotiations and, civic discourse concerning the meaning of rights as vehicles of transformation, also of the legal order. The universal human and civil rights and liberties were also central to the « round table agreements » — foundations of the communist system transformation  [31] . Finally, together with the transformation of the political and legal system, and the formation of the Rechtsstaat, there appeared necessity to conform to the international covenants, which, as for instance the freedom of expression or the right of association, have been signed by the communist authorities, but never implemented within the internal legal order.

The democratic coup d’État however brought about the necessity of decision-making in the extreme difficult conditions of multi-levelled transformation, of the resolution of conflicts of interests. It also revealed that in the pluralistic modern world, characterized by its lack of prevailing morality  [32] , the language of rights as well as the discourse concerning rights and their argumentative basis is open-ended, that there exist many possible interpretations of fundamental freedoms, of the property rights, of the equality of treatment rights. That contributed to the initial insecurity, and initiated the quest for identity and self-realization of the postcommunist societies as communities having common historical roots.

The universal human and civic rights and liberties which may provide legitimation grounds for the emerging postcommunist legal systems, and link it with supra-national institutional arrangements, do not have moreover long-lasting traditions in East-Central Europe.

Authors analyzing processes of postcommunist legal transformation refer to the cultural institutionalized inheritance which, as it is claimed, consists in the dominance of the collective over the individual rights and liberties.

On the basis of an historical analysis of the fundamental legal documents, it is then concluded « that the tradition of individual freedom became latent in the Polish culture. [...] Freedom was understood primarily as national freedom, as right to an independent state »  [33] .

As it is further claimed, the idea of individual civil rights and liberties has been even resisted. The sources of this resistance were « Poland’s history, its geopolitical situation, and the structure of Polish society »  [34] .

Similar observations relate to the implementation of the individual freedoms and liberties in Hungary, as one can conclude from the sceptical evaluations of the possibilities of the development of liberalism, presented by Hungarian intellectuals  [35] .

Consequently, one observes the growing resistance of those politicians and also lawyers who claim to represent traditions, to the subordination of the respective state legal systems to international standards regarding individual rights and freedoms, for instance the freedom of expression, or the freedom of choice  [36] . As it then seems, revival of collectivistic traditions, the « unhappy marriage of historicism and nationalism », to quote Jürgen Habermas  [37] , may hinder civilizational potentials inherent in the globalization of law processes, predominantly in the form of globalization of rights culture, as perceived from the perspective of postcommunist Europe. Those traditions, together with the growing criticism of liberalism, combined in the most unfortunate way with the modernization efforts and implementation of legal regulations devoid of any historical, cultural, and moral content, whose only legitimation is given by their functional effectivity, and whose rationality is purely instrumental, pose the Scylla and Charibda of the postcommunist transformation. The potentials of globalization processes in this respected may consist exactly in that, what pose also their « weakness » : in the reassessment of the open-endness of rights, the plurality of their interpretations, their possibilities in reflecting of local cultures and traditions, combined however with the supra-nationally valid procedures designed to resolve conflicts and to control infringement of rights, which have been accepted as valid.

In this short essay some of the pitfalls and potentials of the globalization of law processes have been outlined. Both of them are inherent in the ever present tensions between globalization and localism, in the new quest for reassessment of historical identity, in the contingency of social development and the liberal ideology with which globalization processes are linked, and the open-endness of the rights discourse.

Regarding potentials, one has in mind the culture of rights, as justification and legitimation of the emerging supra- and transnational legal order. As far as pitfalls and dangers are concerned, one has to stress the ever more present narrow instrumentalism on the one hand, and the ever more visible particularism, nationalism and traditionalism on the other. Therefore the prospects of hope are disputable, and to the great extent they depend, apart from the international political factors, which have not been discussed here, from the actual goals, interests, value structures and commitments of the societies in question and their political elites  [38] .

L’auteur

Professeur à l’Institut de sociologie (Deputy Director de cet institut) de la Jagiellonian University, Cracovie, Pologne. Spécialisée en sociologie du droit et théorie sociale. S’intéresse particulièrement à la transformation des rapports entre droit et société après 1989.

Parmi ses publications récentes :

— « The Legacy of Anti-Legalism », dans M. Krygier (ed.), Marxism and Communism. Posthumous Reflections on Politics, Society and Law, Amsterdam/ Atlanta, Rodopi, 1993 ;

— A Fourth Way ? Privatization, Property and the Emergence of New Market Economies (eds, en collab. avec G.S. Alexander), New York/London, Routledge, 1994 ;

— « From Rights to Myths. Transformation in Post-Communist Europe », dans A. Sajo (ed.), Rights after Communism, Amsterdam, Kluwer, 1996 ;

— « The Paradigm Lost ? The Constitutional Process in Poland and the Hope of a "Grass Roots Constitutionalism" », dans A. Czarnota and M. Krygier (eds), Rule of Law after Communism, Darmouth, 1997 (à paraître) ;

— Re-Constitution of Society. Constitution-Making Processes in Central Europe in Light of Social Theory (à paraître).

* Institute of Sociology,
The Jagiellonian University,
ul. Grodzka 52,
31-144 Krakow, Poland.

1. Anthony Giddens, The Consequences of Modernity, Cambridge (UK), Polity Press, 1990, p. 63.

2. Ibid., p. 70 ; S.P. Huntington, « The Change to Change ; Modernization, Development and Politics », Comparative Politics, vol. 3, n° 3, april 1971, p. 283-322 (cf. p. 284).

3. Anthony Giddens, op. cit., p. 71.

4. Lawrence M. Friedman, « Is There a Modern Legal Culture », Ratio Juris, vol. 7, n° 2, 1994, p. 117-131 ; Volkmar Gessner, « Global Legal Interaction and Legal Cultures », Ratio Juris, vol. 7, n° 2, 1994, p. 132-145.

5. Jakob Juchner, Osteuropa im Umbruch, Zürich, Seismo Verlag, 1994, p. 65.

6. Immanuel Wallerstein, Geopolitics and Geoculture, Cambridge (UK), Cambridge University Press, 1991 (cf. Introduction).

7. Anthony Giddens, op. cit.

8. The « Europeans »’ standpoint is represented in programs of such political parties in Poland as the former Democratic Union and the former Democratic-Liberal Congress, currently the Party of Freedom, but also is characteristic of the « progressive » part of the former communists, currently turned part of the social-democrats. The arguments the « Patriots » are characteristic of such parties as the Confederation of Independent Poland, conservative parties, parties which have in their name adjective « Christian », but also by the very influencial peasant party (United Peasant Party).

9. Agnes Heller, « Wissen wir, was geschehen ist ? » Interview with Agnes Heller and Ferenc Feher, dans Jozsef Bayer et Rainer Deppe (eds), Der Schock der Freiheit. Ungarn auf dem Weg in die Demokratie, Frankfurt/Mein, Suhrkamp, 1993, at 50.

10. Ivan Szelenyi, « Mitteleuropa auf dem Weg in die kapitalistische Wirtschaftsordnung », dans Jozsef Bayer et Rainer Deppe (eds), Der Schock der Freiheit. Ungarn auf dem Weg in die Demokratie, op. cit., p. 42.

11. Grazyna Skapska, « The Legacy of Anti-Legalism », dans M. Krygier (ed.), Marxism and Communism. Posthumous Recflections on Politics, Society and Law, Amsterdam/Atlanta, Rodopi, 1993, p. 200.

12. According to the Polish privatization law, the privatization procedure of particular enterprise takes a form of the contract which, roughly speaking, defines the conditions of sell out of an enterprise, among others obligations of the buyer towards the company employees (first and foremost the amount of at beneficial prizes or the dispersion of free shares among them) shares and towards the company itself (for instance its modernization).

13. Anthony Giddens, op. cit., p. 64.

14. Bruce L. Benson, The Enterprise of Law, San Francisco, Pacific Institute for Public Policy, 1990, p. 230.

15. Lawrence M. Friedman, 1994, op. cit., p. 119.

16. Volkmar Gessner, op. cit., p. 134-142.

17. Immanuel Wallerstein, Unthinking Social Science, Cambridge (UK), Polity Press, 1991, p. 232.

18. Stephen Jay Gould, « Life in a Punctuation », Natural History, october 1992, p. 21.

19. Gregory Alexander et Grazyna Skapska, « Introduction » to A Fourth Way ? Privatization, Property and the Emergence of New Market Economies, London/New York, Routledge, 1994, p. XIII.

20. Grazyna Skapska, « The Legacy of Anti-Legalism », dans M. Krygier (ed.), Marxism and Communism. Posthumous Reflexions on Politics, Society and Law, Amsterdam/Atlanta, Rodopi, 1994 ; Grazyna Skapska, What Capitalism ? Comparative Analysis of the Institution-Building Processes in Poland, The Czech Republic and Hungary, unpublished report for the Central European University, 1994.

21. Immanuel Wallerstein, The Modern World System, New York, Academic Press, 1974 ; Id., The Capitalist World Economy, Cambridge (UK), Cambridge University Press, 1979, p. 1-36 ; Id, Geopolitics and Geoculture, op. cit., (cf. Introduction).

22. That thesis is corroborated by the enormous importance for the direction of the development of legal culture and the foundation of the Rechtsstaat in Poland of the two succeeding ombudspersons : prof. Ewa Letowska and prof. Tadeusz Zielinski, and the judges of the Polish Constitutional Tribunal.

23. Immanuel Wallerstein, Unthinking Social Science, op. cit., p. 229. In accord with such a standpoint, the author of this statement, Immanuel Wallerstein, refers to the history of particular countries, predominantly to Poland. His thesis concerning the location of Poland in the xvith century in the European-world as a semi-periphery of the core system but still within the dominating single social division of labour determining the good chances of development of capitalism in Poland has then some relevance for the present debate (cf. Immanuel Wallerstein, 1974, op. cit., chap. 6, et 1991, op. cit., p. 230). However, evaluated by a prominent Polish historian, it is « so far removed from empirical evidence about the economic reality of eastern Europe that it is not really difficult to criticize it ». This conception « presents a description of economic changes in this area according to [its author] own conceptual framework, which in effect is to force reality to fit a theoretical model » (Jerzy Topolski, « Sixteen Century Poland and the Turning Point in European Economic Development », dans J.K. Fedorowicz, M. Bogucka et H. Samsonowicz (eds), A Republic of Nobles, Cambridge University Press, 1982, p. 79). From the socio-legal point of view it is worth to mention that in the following centuries Poland, one can say quite winningly, by creation of specific institutions which made impossible the efficient rule over the country, and which in fact made impossible any political decision making processes, found itself, euphemistically speaking, outside the « European-world economy » and in fact lost its political independence and sovereignty (Norman Davies, God’s Playground, Oxford, Clarendon Press, 1981, vol. 1).

24. It is therefore perhaps a question of style to equal the American Wilsonian « liberalism » with the Soviet Leninist « liberalism » (Immanuel Wallerstein, 1991, op. cit., p. 9). One has not to be astonished, since liberalism is defined as « a particular strategy of the dominant classes utilizable only in core zones of the world economy and reflecting among other things a lopsidated intrastate class structure in which the working classes are a much lower percentage of the total population than in peripheral zones » (Immanuel Wallerstein, Geopolitics and Geoculture, op. cit., p. 10).

25. Ralf Dahrendorf, Reflections on the Revolution in Europe, London, Chatto and Windus, 1990.

26. It is therefore perhaps the question of taste not to analyse in a profound way the up till now the most successful and the most influencial of the « anti-systemic », but first and foremost anti-liberal, movements : the Fascist movements throughout the world and the Nazist movement in Germany. But it is first and foremost the problem of scientifical honesty and empirical evidence.

27. Ralf Dahrendorf, op. cit., p. 15-30.

28. Lawrence M. Friedman, 1994, op. cit., p. 124.

29. Michael J. Lacey et Knud Kaakonssen (eds), A Culture of Rights, Cambridge University Press, 1991, p. 2.

30. Adam Michnik, Letters from Prison and other Essays, Berkeley, University of California Press, 1987.

31. Wiktor Osiatynski, « Constitutionalism and Rights in the History of Poland », dans L. Henkin (ed.), Constitutionalism and Rights, New York/London, Routledge, 1990, p. 297.

32. Jürgen Habermas, « Human Rights and Popular Sovereignty : The Liberal and Republican Versions, Ratio Juris, vol. 7, n° 1, march 1994, p. 1-13.

33. Wiktor Osiatynski, op. cit., p. 285.

34. Ibid., p. 296.

35. George Schöpflin, « Der unterentwickelte Konservatismus in Ungarn », dans Jozsef Bayer et Rainer Deppe (eds), Der Schock der Freiheit. Ungarn auf dem Weg in die Demokratie, Frankfurt am Mein, Suhrkamp, 1993, p. 83 ; Interview with Janos Kis, dans J. Bayer et R. Deppe (eds), op. cit., p. 89.

36. The first, freedom of expression, is already limited in Poland in regulations concerning mass media law, based on the general principle of Christian values. The second is linked with the ever more disputed abortion issue.

37. Jürgen Habermas, op. cit., p. 5.

38. This paper has been written during my stay at the Max Planck Institut for European Legal History, Frankfurt am Mein, Germany. I would like to express my gratitude to the Director of the Institute, Prof. Dr Dieter Simon, for the excellent working conditions, and to the Alexander von Humboldt Foundation, for a grant ; both of them made possible to write that essay.