In 1989, starting in Poland and spreading quickly throughout Central and Eastern Europe, European communism imploded. In some places new states were born, in others old ones re-established their independence. In all there was talk of ‘transition’ to something very different, something at the same time very new and very old.

20 years on, a lot has changed. Much that seemed revolutionary then seems old hat now. And the attempt to cut and paste forms, structures, and successes from ‘normal’ societies, as the West was known in the East, has turned out to be a far from conservative enterprise, not simple, and not always popular. Indeed, homegrown conservatives have come to be suspicious of it, often accusing their opponents – those devoted to democracy, capitalism and the rule of law, for example – of untraditional and unforgivable radicalism. The suspicion is general, encompassing many ideals and practices believed to be alien imports. It is most vocally directed against democracy and capitalism. However it has also reached – less perhaps as rejection in principle than disappointment in practice – that animating ideal which has had such a renaissance since the collapse of communism and in connection with it: the rule of law.

For this special issue, six distinguished students of post-communism were asked to reflect on the fate of the rule of law in areas that they knew best; of course they could stray where they felt necessary. Balcerowicz focused primarily on the economy, Hendley on Russian courts, Ganev on east European constitutional and regular courts, Skąpska on privatisation, Czarnota on ‘transitional justice’ or ‘dealing with the past,’ Přibáň on the implications of a ‘return to Europe’ both as ambition and achievement.

The rule of law has been studied by political philosophy, law, political science, sociology and economics. The representatives of these social sciences have used various approaches (including various mixtures of conceptual and empirical analyses), for the study of this important problem. This also applies to research on post-socialist transformation which provided a unique and powerful natural experiment for students of institutions. In this paper I attempt to place the rule of law within a broader context, that of institutional change after socialism. This is why I start with a stylized description of this system and of what has happened to it after the collapse of socialism in the former Soviet bloc (second section). Then I try to link institutional change after socialism to the rule of law (third section). This requires a minimal clarification of this concept. In the fourth section, I discuss the rule of law after socialism in the light of empirical studies on this variable, studies which were mostly prepared by economists. The final section sums up the main findings: Changes in the legal framework take less time than those in a country's institutional system, including the transformation of its enforcement apparatus. As a result, widespread implementation gaps emerged even in the most reformed transition countries.

By conventional measures, Russia lacks the ‘rule of law’. For evidence, we need look no further than the notorious Yukos case, in which its president, Mikhail Khodorkovsky, was railroaded into a criminal conviction and his company was bankrupted, with the proceeds mysteriously ending up in the hands of Kremlin insiders. The Yukos case is only the most infamous example of so-called ‘telephone law,’ a practice by which outcomes of cases allegedly come from orders issued over the phone by those with political power rather than through the application of law. The media is replete with such accounts. The conclusion typically drawn by media commentators and social scientists alike is that the omnipresence of ‘telephone law’ makes any reliance on formal law or legal institutions in Russia fool hardy.

Generalizing from politicized cases with high stakes for everyone involved, including the state, is, however, problematic. Though the willingness of officials to mobilize ‘telephone law’ in such cases, either to further the interests of the state or for self-aggrandizement, clearly undermines the goal of equality before the law for all, whether it is reflective of practices in non-politicized cases is unclear. If it were, then we would expect to find a reluctance on the part of ordinary Russians to take their disputes to court. Yet the caseload data document just the opposite: the number of civil cases has more than doubled over the past decade. This gives rise to a puzzle: why are Russians willing to use a legal system that is so deeply and patently flawed? More importantly, what does it reveal about the prospects for the ‘rule of law’ in Russia?

Throughout the 1990s Eastern Europe was arguably the region most intensely studied and discussed by the community of scholars interested in the spread of the Rule of Law around the world. There was little doubt at the time that the political and institutional experiments whose ultimate goal was the establishment of democratic constitutional orders in the former Soviet satellites constitute a distinct object of study. This commonsensical view was supported by two kinds of arguments that accentuated the exceptional character of post-communist transformations.

There was, first, the question whether the attempt to transplant Western models to non-Western socio-cultural milieus is going to work at all. That new constitutions and laws must be adopted no one seriously doubted; but that grand acts of ‘founding’ would be sufficient no one earnestly believed. Second, analysts probing the complexities of East European politics pointed out that fledgling democratic regimes there face a ‘rule-of-law dilemma,’ namely a situation where ‘what is deemed just is contingent and informed by prior injustice’ and ‘the value of legal change is in tension with the value of adherence to the principle of settled legal precedent.’ Since the ‘special conditions’ that societies emerging from the long night of authoritarianism render conventional conception of the Rule of Law ‘inapplicable or only partially applicable,’ ‘an exceptionalist paradigm’ was necessary, one that is more sensitive to contextual peculiarities. Should the agents of the previous regime be punished? And if so, in accordance with what criminal laws and pursuant to what legal procedures? Should property confiscated by previous regimes be returned to former owners and their descendants? Would it be justified to apply new laws retroactively in order to remedy past injustices? It was far from clear whether such intractable questions lend themselves to just and normatively desirable solutions compatible with an overarching commitment to the Rule of Law.

In this paper I will defend the view that the conversation about what is sui generis about post-communist polities should continue. But I will also argue that in order to understand the specificity of post-communist constitutional orders, we should shift our attention from the related issues of the fate of constitutional transplants and the dilemmas of exceptionalist jurisprudence towards the more or less permanent institutional characteristics of these orders. The change of focus does not mean that the problematique of ‘the transition’ should be abandoned; but it invites us to take a fresh look at what transpired during the 1990s and recalibrate our understanding of what the truly important, enduring legacies of that decade are. Such an endeavor must begin with a careful account of the actual results of the region-wide attempt to introduce the Rule of Law, and in what follows I will focus on the effort to establish independent Constitutional and regular courts. As I will show, postcommunist experiences should be interpreted through the prism of two broad analytical themes: the balance of power between pro-law and anti-law constituencies in society, and the statist dimension of the Rule of Law, or the manner in which this set of principles and practices is embedded in, and affected by, the organizational infrastructure of governance. Explorations of the specificity of post-transitional Rule of Law will thus yield insights into this key yet understudied issue, the nature of the social and institutional factors that facilitate or obstruct the growth of this form of modern democratic governance.

According to the famous argument of Max Weber, there is a strong and direct connection between the rule of law and economic success: the establishment of the rule of law facilitates the functioning of an efficient economy. Indeed, as Weber argued, the emergence and establishment of a rational legal order and formation of law-based political authority were important factors which explain rapid economic growth. These theses of Max Weber reflect long lasting and deeply embedded European legal cultures and legal mentalities. Recent developments in Eastern and Central Europe, especially privatization of state-owned property, challenge a simplistic understanding of the Weberian argument. The sheer amount of property to be privatized, and the strong interests involved make the rule of law toothless, especially if the state is weak. Moreover, the very principle of the rule of law becomes questionable if the law represents a product of dominating interests, in the context of political capitalism. Thus, instead of the law-controlled privatization of national property, one observes growing corruption, nepotism and clientelism as important mechanisms of law making. Additionally, the weakness of government, above all the weakness of the law-applying and law enforcing agencies, and the traditional, formalistic understanding of the rule of law principle, additionally contribute to pathologies of economic transformation in Eastern and Central Europe, after the fall of the Berlin Wall.

This year we celebrate 20 years since the transfer of power from communist regimes started in Poland's first (semi-free) election of 4th June 1989, which ushered in Europe's first post-communist, non-communist, government. It had snowball effects in other countries. With the exception of Romania the transfer of power was peaceful and based on agreements usually called ‘round table talks’.

There is no doubt that each of these countries has made substantial progress since 1989. But serious problems remain. The states do not function as expected by their citizens, basic institutions of administration of justice do not work as they should, the level of corruption is too high and politics, while passionate operates rather as a façade, with a great deal of real activity happening behind the scenes and elsewhere. Citizens do not believe in their impact on the political processes and plenty of them complain that the institutions of the administration of justice do not act properly.

Why is this? A substantial number of citizens and observers of the affairs of the region claim that remnants of the past, unsatisfactory dealing with legacies from the former regimes, are responsible for the contemporary state of affairs. It is not my aim to confirm or falsify such claims, but it is clear that the extremely complicated problem of the relations between legality, the rule of law, institution-building and dealing with the past in the process of transition from communism over these twenty years is important. In this article I will describe the most controversial legal strategies adopted in various countries to deal with the past, so-called ‘lustration’ and ‘decommunisation’. I will discuss relevant case-law of domestic courts as well as the European Court of Human Rights. I argue that lustration generally plays a positive role in laying down foundations for a cleaner public sphere and rule of law and democracy, and also that the debates which lustration have stimulated have played a very positive role in building rule of law cultures in the countries in question.

In the last two decades, post-communist states experienced a fascinatingpolitical journey, from using the rule of law concept in the most general way asan early signal of the coming constitutional and political transformation, tospecifically (as EU Member States) addressing the problem of the supremacy of EUlaw and its effect on emerging national democracy and constitutionalsovereignty. In other words, they moved from asking the question‘which rule of law?’ to the question ‘the rule ofwhich law?’

This move itself indicates the capacity of the rule of law, which is discussed inthis article, to operate as a political ideal and a power technique at the sametime. This duality of the rule of law operations will be outlined against thebackground of the process of European integration and its challenges to thetraditional constitutional notions of sovereignty and legal unity. I shall arguethat post-communist states initially had to embrace the substantive concept ofthe rule of law drawing on liberal and democratic values, which became a validticket for ‘The Return to Europe’ journey. However, the veryprocess of European integration involved technical uses of law often challengingthe substantive notion of the democratic rule of law and constitutionalism. Theaccession of post-communist states to the EU thus highlights the Union's moregeneral problem and intrinsic tension between instrumental legitimacy byoutcomes and substantive legitimacy by democratic procedures and values.