Pulls and Pushes of Legal Reform in Post-Communist States

Abstract

The breakdown of the Soviet Union, the emergence of new independent States, their constitutional promises and factually rough transition to different economic, social and political relations, to market economies, the rule of law and democracy, provoke important practical questions and theoretical debate. They concern the interrelation between law and social change, the State and the market, private vice and public benefit. Different schools of thought intervene and confront each other: adepts of auto-regulatory mechanisms, trust in market forces and shock therapies versus defenders of institution building, of legal and judicial reforms setting a strong frame and giving shape to the dynamics of market forces; systematic codification and guaranteed independence of the judiciary versus paced evolution of law embedded in specific legal cultures. The paper tries to give answers by advocating formal institutions and codified law. They are borne by the practical experience of legal advice which in turn is exposed to methodological problems: Is law ‘transplantable’? Is it, in other words, unmoveable, solidly entrenched in ethnic and national mentalities and cultures or is it of a universal character; and if of the latter, is universalism defined irrespective of history and social structure or does the force of law – in action and in the books – depend on context? Again answers are proposed in building on controversial theoretical approaches. They plead the possibility of an historical and contextual universalism, without alleging evolutionary supremacy.