Basic Concepts of Legal Thought
George P. Fletcher
Oxford University Press
The Rule of Law
Of the all dreams that drive men and women into the streets, from Buenos Aires to Budapest, the “rule of law” is the most puzzling. We have a pretty good idea what we mean by “free markets” and “democratic elections”. But legality and the “rule of law” are ideals that present themselves as opaque even to legal philosophers. Many American jurists treat the rule of law as th
hough it were no more than governance by rules. Thus we find Justice Scalia arguing explicitly that the rule of law is no more than the law of rules.1 And philosophers, such as Friedrich Hayek and Joseph Raz, make the same assumption that the rule of law means that the government is “bounded by rules fixed and announced beforehand.”2 Plying by the rules is, in some dubious contexts, a great achievement, but once societies have minimized graft and arbitrary rule, th
he “rule of law” seems to promise more than blindly playing the game. After all, the rules of the game might be horribly unjust.
There are in fact two versions of the rule of law, a modest version of adhering to th
Continental European languages, for example, use one term for law that express the idea of laws enacted-laid down, legislated-by an authoritative body. Thus Germans use the term Gesetz, French loi, Russian zakon, Spanish ley, and speakers of Hebrew hok. All these languages also contain a second word for law that expresses a higher notion of Law as s binding because it is sound in principle.3 This alternative conception of law is expressed in the Continental European languages as Rech in German, droit in French, pravo in Russian, derecho in Spanish and mishpat in Hebrew.4 The closest translation of these terms in English would be “Right”, an arhaic expression for Law sometimes used in the translation of philosophical works.5 The connotation of Right (or Law with a capital L) is typically that of good or just law, which is
Each of these two terms for law generates a distinct conception of the rule of law. If someone argues that the “rule of law” simply means that “the government is bound by rules fixed and announced beforehand”,8 they would be content with having the rules laid dawn by an authoritative lawgiver or legislature. This is what the Germans would call a Gesetzesstaat or the Communists once labelled “socialist legality” (sotsialisticheskaja zakonnost’). The rules are binding whether they they are good or bad.
Those who think that the rule of law is an ideal for good government stress the dimension of Ri
In English, we are never quite sure what we mean by the “rule of law.” Do we mean rule by the laws laid down-whether the legal rules are good or ba
Unlike typical European constitutions, the basic charter of the United States says nothing about a commitment to the rule of law. The closest constitutional analogue is the phrase prohibiting the deprivation of life, liberty, or property without due process of law.”9 The notion of “due process” provides a conduit for our best understanding of justice and principles of Right. In the language of Justice Cardozo the due process clause expresses “the concept of ordered liberty.”10 The practice of bringing to bear higher law in constitutional interpretation constitutes part of the American commitment to “constitutionalism”.11 The same vision of a civilized legal order is embedded in the European conception of a Rechtsstaat. American legal thinkers seem, therefore, to split their faith in legality between two different nations of the rule of law. The quotidian work of the legal system conforms to Hayek’s and Scalia’s prescription: the rule of law means following the rules laid down. The invocation of higher la, of the principles that infuse justice in the legal order, is reserved for interpretation of the Constitution and, in particular, of the due process clause.
But what does it mean to live under rules governed by “the concept of ordered liberty” or “due process” or in a Rechtsstaat? It is not easy to specify the characteristics of this ideal. A minimum requirement might well be a commitment to some form of equality, at least to the avoidance of arbitrary discrimination between equality situated persons.12 Another requirement would be the maintenance of fair procedures for resolving disputes. There are, of course, merely the bare bones. The effort to introduce substantive values into “the concept of ordered liberty” has produced great controversy. In 1905 the Supreme Court ruled that unrestrained freedom of contract was one of these higher values;13in 1973, the focus had shifted to the right to have an abortion.14 Very few people support both decisions. Many of the political left condemn the former decision and support the letter; some on the political right condemn the letter and support the former. The rejection of both decisions has spawned a school of interpretation called “originalism”, which insists that all basic rights be spelled out in the Constitution.15
In the end, it might be as difficult to specify the characteristics of this ideal of due process or of a Rechtsstaat as it is to define the physical ideal of good health. The best approximation of health might be this: an organism is healthy if it is not ill. The burden falls on perceiving illness, and if there is no illness, the organism is healthy. We recognize breakdowns more easily than we can define the positive ideal.16 In the same way lawyers have a strong sense for the perversions that prevent a legal system from realizing the rule of law. One of them is willy-nilly decision making by judges who either do not follow the rules or exercise too much direction. Another is retroactive criminal justice, or punishing people for a crime committed before the law is announced. But even this approach of documenting perversions of the rule of law may run dry rather quickly. No one has yet given an adequate account, by this approach or any other, of the ideal conception of the rule of law.
In this chapter I take a novel approach to this nagging problem of definition by reflecting on three case studies taken from recent pages of post-Communist political life. After the changes of 1989, the Eastern European governments were in a state of great sensitivity to the ultimate value that should guide their new democratic orders. The events in Hungary from 1990 to 1993 provide a good window on one society’s struggle to establish the rule of law in the wake of forty-five years of dictatorship and repression. The three case studies that will engage us will be the taxi strike in the fall of 1990; the decision to prosecute a man named Miklos Vegvari who violated the old in the name of new democratic values; and the legal activism of the newly created Hungarian Constitutional Court. Each of these tales has something to teach us about the rule of law as a democratic ideal.
The Taxi Strike
It is worth beginning with taxi strike, for it is one of the most unusual phenomena of post-Communist political life. On Thursday night, October 25, 1990, the government made a sudden announcement that the price of gas would increase at the pumps. The new prices would slightly higher than in Austria, the closest Western country. The price increase came as an obvious consequence of tensions in Iraq and other oil-producting countries, of price hikes in the world market for oil, and of increasing efforts by the Soviets to shut off the spigot of subsidized gas that had flowed freely when Hungary was a dutiful colony. For Hungarians, nurtured on Communist subsidies, this was the first direct experience with the capitalist idea that consumers must pay the full (unsubsidized) price of the goods they buy.
The taxi drivers were upset not only by price increase, but by the government’s apparent duplicity in planning the move. The government actually had promised repeatedly not to raise the price of gas. The sudden declaration of the increase was designed to catch people off guard and when they were still exuberant after having celebrated on October 23 their national epic, the abortive 1956 revolution. With several days off from work, most people were in a good move. This was the first time since the transition to democracy that the Hungarians had openly and joyfully celebrated the passionate agony of 1956.
In 1990 it was not tanks but taxi cabs that clogged the streets and bridges of Budapest. Within a few hours after the government announced the price increase, the strikers managed to shut down the major traffic arteries in the city. They parked their taxies on all the major bridges, and threw up blockades around the city. Taxi drivers and private truck drivers cooperated spontaneously to generate blockades in provincial cities.
In the fall of 1990 I was in Budapest as a visiting professor at the local law school. I woke up that fateful Friday without advance warning of the strike. From my balcony overlooking the Danube, I noticed a large crowd milling around the Szabadsaghid- the “Freedom Bridge” leading from Old Market in Pest across the murky blue river to the palatial Gellert Hotel in Buda. I went out among the crowd. “Strike” was the word on the lips of the angry drivers hanging out by their cars blocking the bridge.
Events on Friday began to hint that this was more than a strike. The drivers had cordoned off the airport in Budapest; unless foreign businessmen were willing to walk the last few miles, they were better off sitting on the suitcases in the lobbies of luxury hotels. This ragtag collection of apolitical, tough-talking guys also managed to close the border to Austria. As in 1956, the only way to go through the fields and bypass the official checkpoints.
Business came to a standstill; shops closed early. Somehow people could get home, even if they lived and worked on opposite side s of the river. Though the subway was still running under the river, streetcars and private cars could not cross the Danube. The crowded subway stations became rumor mills. Reports began to circulate that food supplies were running low, that the hospitals could not receive deliveries of medicine. No one knew what was going to happen. The government was the fragile expression of a democratic order. Would it fail this first test?
The leaders of the leading half-dozen parties started speaking out, but in muted tones. The government, then run by the Hungarian Domocratic Forum party, tried to rally support by staging a counterdemonstration. The opposition parties, the Free Democrats and the Young Democrats, did nothing to exploit the situation. Their attitude was to keep their distance, watch what was going on, and urge a peaceful resolution. On Saturday, October 27, the mood began to stabilized. Standstill became the norm. Though the streets were still blocked, the crisp fall day invited strolling. Budapest came out onto the streets. Baby carriages and bicycles took over the lanes normally clogged with polluting vehicles. My sense on “Freedom bridge” was that most people were beginning to enjoy “sticking it” to the government. Then came the news that the police chief of Budapest had announced that, if the government ordered intervention, he would resign.
This was a curious situation for a country accustomed to order first and to law second. A group of workers now blocks the major traffic arteries of the city and everyone seems to applaud. At one level an act of force meets with general approval or, at least, indifference. Workaday citizens are deprived of their right to use the bridges, and they do not complain. They do not insist that labor be kept in its place. There was no doubt in my mind that if the Teamsters tried to shut down the bridges to Manhattan, the police would immediately don their battle gear.
But this is Budapest, not New York or Los Angeles. The common enemy of the last 45 years has not been organized labor but organized government. The Hungarian Constitution, as reformed in October 1989, prohibited the president from using the army to quell domestic rebellion. The analogue in the United States would be the abolition of the National Guard. Can you imagine how federal and state chief executives would cope with urban violence if they could not call in the National Guard? What would have happened without the National Guard in Los Angeles in the post verdict Rodney King riot of April 1992? The Hungarian government had deliberately disarmed itself. The abuses of the past made the people distrustful of armed intervention and the new constitutional limitation survived the temptation to crush the taxi strike by bringing in military troops.
The taxi strike turned out to be an in-house affair. Its closest analogy would be a 1960-style college sit-in. The drivers protested the gas hike in much the same way that American students protested the Vietnam War by closing down universities. The government stood in their minds-as university administrations functioned in the minds of students-as the symbol of all authority. The drivers “parked in” on the bridge, they ceased doing “business as usual”, and their fellow denizens thought it just fine to make life difficult for the parental surrogates called the government.
Some intellectuals began to speak of the “park-in” [my term] as an act of civil disobedience. But acts of civil disobedience raise fundamental issues of right and wrong. There was no moral issue at stake in the taxi strike. This was a bread-and-butter question. When I buttonholed people and asked, “Why shouldn’t taxis simply their rates to offset the gas price increase?” the typical response was , “But then no one could afford to use taxis.” This is the logic of those who still do not accept the vicissitudes of living under capitalism. As of 1990 Hungarians were still looking to their government as their providers, as the guarantors of their welfare.
On Sunday the strike leaders entered into negotiations with the government. Remarkably, the negotiations were broadcast, nonstop, on Hungarian television. Citizens sat glued to their sets with the rapt attention Americans reserve for trials of football heroes accused of murder. It appeared as though the conflicting sides were reaching an agreement in front of the television cameras. They suspended the meeting for about an hour, came back and then Sunday night announced a compromise that would lower the price of gas temporarily as taxi strikers went back to work and life returned to normal.
My impression was that very few people in Budapest card about the symbolic importance of maintaining the proper legal framework for a dispute between a small group of driver-citizens and the government as oil supplier. The minds of Hungarians were on taboos other than breaching the rule of law. No one wanted another violent confrontation on the streets of Budapest. Having just observed the anniversary of the 1956 uprising, everyone was horrified at the prospect of blood flowing once again on the banks of the Danube. Using force to open the bridges was simply out of the question.
There is much to be learned from this episode. First, it seems that the rule of law hardly makes sense in a situation in which the citizenry still sees itself as negotiating with the government as employees negotiate with management. Alas, this is the legacy of Communism and central planning. The party did, indeed, function as the management of Hungary, Inc. The round-table discussions leading to democratic elections carried forward the mentality of employees negotiating benefits from their masters. In a centrally planned economy and controlled society, it is hard to think otherwise.
Yet the rule of law, it seems, requires a vision of government closer to the liberal theory of the state as a disinterested arbiter. The state’s officials must be above the conflicts that lend themselves to regulation under law. So long as the government-as sole supplier of gas-is a party to a dispute, one cannot expect the matter to be resolved under the neutral standard called law.17 Also, the rule of law requires governmental distance in another sense. The state cannot enforce the law consistently and evenhandedly if it thinks of itself as a surrogate parent for its citizens, as bearing ultimate responsibility for their welfare. The kind of indulgence shown by college administrations in the late 1960s-and by the Hungarian government in 1990-reflects an identity of interests with the citizenry rather than the kind of distance required for the neutral arbitration of disputes. The Hungarian government and the masses on the streets shared a common interest in avoiding a repetition of past traumas, and this common interest weighed more heavily than the commitment to secure the rights of citizens to free access to the streets and bridges.
The connection between the rule of law and full enforcement of the law (at least the criminal law) is revealed in ongoing disputes, both in the United States and in Europe, about the acceptability of prosecutorial discretion. We, in the United States and in Europe, about the acceptability of prosecutorial discretion. We, in the United States, have learned to accept prosecutorial discretion as normal and, as some might say, inevitable in a legal system administered by people, not machines. Yet the dispute about full enforcement is still very much alive on the Continent.The camp in favor of full enforcement invokes the principle of legality on its side; they rely on the expression Legalitatsprinzip [legality principle] to designate full enforcement. Under this “legality principle”, prosecutors may not make special deals with particular suspects in return for their cooperation. The discretionary approach-known as the Opportunitatsprinzip [opportunity principle]-permits prosecutors to pick and choose their cases and invest their resources to maximize their effectiveness.
The conflict between the principles of full and discretionary enforcement came to a head in Hungary’s transition to democratic rule. The occasion was the prosecution of a onetime loyal officer of the Hungarian Secret Service, Miklos Vegvari, who changed sides and invited dissident groups into the heart of the surveillance system that was eavesdropping on the round table negotiations between the dissidents and the Communist party. On Christmas day 1989, Vegvari invited a television crew from the “Black Box”-an alternative TV group-into the inner sancta of the Secret Service building in Budapest. The group filmed files and other secret corners of the operation and showed the film on television. The resulting scandal came to be known as “Dunagate”: a label that suggested a certain pride in Hungary’s generating a Western-style scandal.
Keep mind that first free elections took place in February 1990, three months after Vegvari breached his official duties as an intelligence officer. There is a little doubt that his acts constituted criminal violations under the criminal code then in force. And indeed, in principle, if me may abstract from the political conflict of the moment, his acts should constitute criminal offenses under any system of criminal law. Every legal system, whether democratic or Communist, maintains a secret service; and to invade its official quarters is not defensible however good the political motive. Under ordinary circumstances Vegvari would have been prosecuted and convicted.
The Communist chief prosecutor decided, however, not to prosecute. This was a decision based not so much on expedience as on a recognition of Vegvari’s good faith and perhaps a sense that the changing political climate rendered him more of a hero than a villain. In June 1990, the newly constituted democratic government appointed a new chief prosecutor Kalman Gyorgyi, who was a distinguished professor of criminal procedure, well schooled in German literature on the imperative of the “legality principle”. Paradoxically, the new democratically minded chief prosecutor decided that he must prosecute Vegvari. The principle of legality required that he bring to trial a man who had served the cause of the democratic transition.
When the case finally came to trial in the fall of 1990, the process revealed a curious of Soviet and Western legal ideas. On the one hand, the decision to prosecute reflected a yearning to identify with the principles of legality that prevailed in the West, or at least in those few countries officially committed to the “legality principle”. On the other hand, the central legal dispute reflected the ongoing influence of Soviet doctrines and terminology. Vegvari’s defense was that his conduct was justified because, as Soviet lawyers used to say, it was not “socially dangerous.” He was aiding the democratic movement, and indeed the movement had won. In what sense could one say that his conduct constituted a danger to the legitimate interests of the emerging democratic order?
The answer to the question depends, of course, on how we define Vegvari’s conduct. If we look just a what he did, namely, reveal official secrets, his conduct was surely criminal regardless of his motives. If we focus on this conduct in context, however, it takes on the appearance of justified civil disobedience. The military court that heard the case (as an intelligence officer Vegvari was under military jurisdiction) cannot be criticized for not being able to resolve this conundrum. The prosecution ended in November 1990 in a compromise verdict. The court issued an official sanction of Vegvari’s conduct, but this sanction was an informal reprimand, short of an official conviction.
The notion of a reprimand short of a conviction reveals the same kind of paternalistic thinking we noted in the resolution of the taxi strike. In the United States, we assume that the potential criminal liability of adults is an either/or matter. Either you are guilty and subject to sanction or you remain a free person. There is no gray zone in which you are subject to official reprimand from state officials. The indulgence that the government showed the taxi strikers represents the other side of the paternal coin. The same surrogate parent that shows caring regard also reprimands those who disappoint her. It will take years of reform to eliminate this way of thinking from a society that despised, but nonetheless became used to “big brother” in government.
An Activist Constitutional Court
One of the slogans that has captured the imagination of legal thinkers everywhere is the protection of “human rights”. The ideal of the Right now shines most clearly in this expression that motivates reformers in English as well as other languages. The challenge for every emergent democracy is defining what these rights are and setting up institutions for interpreting and enforcing these definitions. The transition to democracy in Eastern Europe has meant in most cases, subscribing to the rights spelled out in the European Convention of Human Rights, as applied by the European Court of Human Rights in Strasbourg, France. The ambition of every new democracy in the region is to join the Council of Europe, namely the group of more than twenty-five nations that accept the jurisdiction of the human rights court in Strasbourg.
In addition, the new democracies have established constitutional court for interpreting and enforcing their local constitutional safeguards of human rights. The Hungarian Constitutional Court, modeled after the German Constitutional Court, consists of nine sitting judges, virtually all of whom are professorial types who were appointed from research or teaching positions. The judges serve terms of fifteen years. They have had to confront and resolve more controversial cases than the U.S. Supreme court Assayed in its first hundred years, partly because their jurisdiction includes the “abstract review” of statutes on their face, without the specific case or controversy before the court. Any citizen can petition the court to hear a constitutional question. The jurisdiction of the U.S. Supreme Court is more circumspect: only actual cases and controversies, involving people who suffer the ill effects of a dispute statute, come before the court.
The Eastern European democracies face the same set of problems bequeathed by their Communist past. First, what should they do about crimes committed under the Communist but never prosecuted? Second, what should they do about the widespread use of capital punishment in view of the Council of Europe’s strongly disfavoring capital punishment? Further, what should they do about property rights that were sacrificed in the programs of nationalization of property carried out by the Communists? Of these recurrent problems in the region, I will focus on the resolution of two by the Hungarian Constitutional Court-punishment of crimes of the past and the future of capital punishment.
The hallmark of dictatorship is the government’s participation in committing crimes against citizens. Because the government controls the prosecutorial establishment, these crimes are never prosecuted. (This explains some of the sensitivity connected to the Vegvari case.) Some of the most egregious instances in the region occurred in 1956 and 1968 when Soviet tanks rolled into Budapest and Prague to squelch the movement toward democracy. Many executions followed both invasions. At the border between East and West Germany, other instances of violence were commonplace. The border guards of the former German Democratic Republic (GDR) shot and killed their own citizens who were trying to scale the wall and flee to the West.
Understandably, after the transition to democracy, the victims of this repression called for prosecution of those who were responsible. After unification of the two Germanies on October 3, 1990, the government began prosecuting the border guards who allegedly used excessive force at the border. The guards, in turn, claimed that statutes in force at the time, authorized them to use the force necessary to prevent unlawful exit from the country. The West Germans responded that these statutes violated the basic human right of freedom of movement, recognized in international law. As a result, the statutes were not really law in the sense of Right and therefore they provided no justification for attempting to kill the escaping East Germans. Not surprisingly, the West German view prevailed in the courts. This debate illustrates the conflict between two senses of the rule of law. The border guards relied on the law as the rules laid down by the legislature of the GDR. The Western courts relied on the higher notion incorporated in their idea of a Rechtsstaat-a state based not only on law but on respect for basic human rights.18
For the Hungarians, the major issue of justice in the transition to democracy was prosecuting those who collaborated in the repression of the 1956 uprising. For those crimes, the statute of limitations, typically twenty years, had already run. This meant that under ordinary circumstances, the prosecution was barred; the government’s hands should have been tied. The parry to this argument was that under the Communist regime, political interests stood in the way of prosecution, and therefore the passing of time should not have had its normal effect.
The Hungarian parliament responded in November 1991 to the popular demand for prosecution by enacting a law that tolled (i.e., suspended) the statute of limitations for the crimes of treason, murder, and related crimes of violence, when the reason for nonprosecution was political. Significantly, the period of limitations would begin running on May 1, 1990, the date on which the first freely elected post-Communist government took power. The assumption behind the statute was that the Communists were complicitous in these unprosecuted crimes of violence and therefore they naturally refused to prosecute them. The President of the Republic delayed signing and promulgating the law and in the interim asked the Constitutional Court for an opinion about the statute’s constitutionality.
In March 1992 the Constitutional Court ruled that the statute was unconstitutional as a violation of the provision in the Constitution, as amended in October 1989, that recognized Hungary as an “independent, democratic Rechtsstaat [a state governed by the rule of law].” 19 The Court’s opinion relies upon a variety of characteristics associated with the rule of law. One is that all citizens should be able to rely on rights vested by the express command of the legal system. If the statute of limitations has run, the citizens acquires a right not to be prosecuted for the crime. The attempt to suspend the statute’s running during the Communist regime, therefore, represented an effort to deprive citizens of their rights. This argument is supported by common expectation that after the statute of limitations runs, the state will not try to counter the effect of the time limitation and prosecute the case. After the limitation period is satisfied, those who might have faced prosecution rely upon their immunity. They lead their lives with greater ease. They expose themselves to the risk of arrest. Under these circumstances, it makes sense to say that they also have a right to rely on their immunity from prosecution. The right derives common expectation that the law will not suddenly change to their detriment.20
The second argument advanced by the Court is that the rule of law requires certainty and predictability. The vague requirement for tolling the statute of limitations-that the previous failure to prosecute be based on political reasons-made it difficult, if not impossible, to predict when the law would apply and when it would not. This is a sound point.
Yet the third argument in the opinion is more dubious. The court argued that increasing the term of limitation after the commission of the crime violated the constitutional principle that all crimes must be legislatively defined prior to their commission.21 The argument is that tolling the statute of limitations was something like increasing the penalty after the crime was committed. Suppose that on November 1, 1956, when the crime is punishable by ten years in prison, Bela commits an aggravated assault. Thereafter the legislature seek to raise the penalty for aggravated assault to fifteen years; this would clearly be unconstitutional as an ex post facto law. The Constitutional Court reasoned that lengthening the statute of limitations was analogous to increasing the penalty. In both cases the offender faces a law at trial harsher than that in effect when he committed the offense. On the basis of this reasoning, the Constitutional Court declared the law unconstitutional even as to cases in which the statute had not yet run (i.e., to crimes committed in the 1980s).
The third argument is dubious because it overlooks a well-established legal principle. The general position of legal systems is that procedural changes are not part of the ““rime” that must be defined prior to the time of commission. Suppose the state changes the rules of evidence or the number of judges or lay people who sit in judgment of the case. Do offenders have the right to rely upon the procedural institutions in force at the time of committing their offence? The answer is no. No legal system in the world recognizes that every suspect has the right to be tried under precisely the same set of legal institutions that were in force at the time of the crime. The principle is that the offender may rely on the substantive law in effect at the time of the alleged violation, but the state may design the rules that govern the effort to seek the truth about whether the suspect committed the crime.
Note that this distinction between the substantive rules defining the crime and the procedural rules governing the mode of trial is a fundamental tool of analysis in every legal system. Yet nowhere is the distinction definitely spelled out in the positive law of the jurisdiction. The existence and importance of this distinction between substance and procedure testifies to the inescapability of unwritten principles of law. It is hard to imagine a legal system that could function without this particular distinction.
In any event, the Constitutional Court reached the novel conclusion that the “rule of law” or the principles of a Rechtsstaat prohibited changing the statute of limitations even in a case in which the statute had not run. The German Constitutional Court had reached the opposite conclusion: amending the statute of limitations prior to its expiration was a procedural and not a substantive change.22 But the Hungarians paid no attention to this or other holdings on the distinction between substance and procedure. The Court expressed acute sensitivity to the value of the rule of law and therefore ruled against any change of the law that accrued to the detriment of the defendant. This ruling may tell us more about the postcommunist historical situation of the Hungarian court than about the issues decided.
Another example of the same mode of reaching against the abuses of Communism occurred in the Court’s decision on a challenge to the constitutionality of capital punishment. In October, 1990, just before of taxi strike, the newly constituted Constitutional Court in Budapest heard a complaint by a law professor from Miskolc, a provincial city to the northeast, challenging the constitutionality of the death penalty in Hungary. Of course, under the American constitution, it would be hard to imagine an ordinary citizen, even a political activist, challenging the constitutionality of the death penalty unless he was personally facing execution.
After a brief oral argument, the Court convened and with apparent ease declared capital punishment unconstitutional as an arbitrary violation of the right to life.23 This was a much bigger event in constitutional history than the Court seemed to note. No other court, anywhere in the world, had categorically and irreversibly outlawed the oldest form of punishment-the taking of life. There was no widespread abuse of capital punishment in Hungary, as there was in the former Soviet Union. Under the reform Communists of the 1980s, Hungary was relatively progressive. The death penalty was threatened only for various forms of aggravated homicide, burglary resulting in death, genocide, other life-threatening, highly dangerous acts, such as terrorist acts and hijacking, and certain military offenses committed in wartime. All of these offenses, or almost all of them, would pass muster under American constitutional standards as the kind of offenses that render the death penalty permissible.24 So far as one could tell, the vast majority of the Hungarian population strongly supported the death penalty.
If there were a clear provision on point in the reformed Hungarian Constitution, one might profile the judges as acting under a simple constitutional imperative. But there was no relevant clause that could generate a knockout syllogism against the death penalty. There was nothing more compelling than the vague language of the American Eighth Amendment prohibiting “cruel and unusual punishment”. Article 54(1) of the amended Hungarian Constitution provides:
In the Hungarian Republic everyone has the inherent right to life and human dignity to which no one shall be subject to torture or to cruel and inhumane or degrading treatment and punishment. And no one shall be subject without his free consent to medical or scientific experiment.
The key phrase in this provision proved to be “arbitrary deprivation”. At one time, a plurality of Justices on the U.S. Supreme Court thought that the way American courts decide to impose the death penalty was excessively discretionary and therefore arbitrary.25 The Hungarian judges had a different sense of the world in mind. They focused not on the arbitrariness inherent in the process of prosecution and sentencing but on the substantive arbitrariness of a legal system that did not have compelling reasons for threatening and using the death penalty. The claim was that the death penalty has no sound supporting reason and if that was so, it must be viewed as arbitrary. Life so taken was taken arbitrarily.
Now how would one conclude that the death penalty has no sound, supporting reason? It is fairly easy to cast doubt on the statistics supporting deterrence as a rationale for the death penalty. But the death penalty did not become established as a standard form of punishment because people thought that executing some would deter potential murderers more than lesser penalties could. If there was ever a point to the death penalty, it is that retributive justice requires that the norm against killing be vindicated by turning the crime back on the criminal, making him suffer as he made his victim suffer. In western philosophical thought, notably in Kant and in Hegel, the principle of equivalence came to be a stable component in our thinking about just punishment. Yet the majority of the Justices on the Hungarian constitutional Court ignored the retributive justification for capital punishment. Limiting their focus to deterrence and its inadequacies, the judges concluded, without much ado, that the death penalty was arbitrary and therefore unconstitutional.
Although Article 54 of the Hungarian Constitution is almost a verbatim adaptation of Articles 6(1) and 7 in the 1966 International Covenant on civil and Political Rights,26 there is little international authority for the Hungarian Court’s decision. However valuable the right to life may be, there is nothing in these antecedent international documents that outlaws capital punishment. On the contrary, they are all drafted to recognize an exception for capital punishment. For example, the rest of Article 6 in the International covenant details the way in which the death penalty is appropriately applied. And the parallel provision in the European Convention on Human Rights explicitly recognizes that offenders may be sentenced to death and may be executed according to the judgments of a court. As far as I know, no international document flatly prohibits the death penalty. It is true that voluntary protocols to both the International Covenant and the European Convention require subscribing states to forswear as a sanction, but protocols, it is worth repeating, are not binding on member states. Great Britain, Belgium, and other respectable states have so far refused to sign.
Interpreting their amended constitution to prohibit the death penalty had great symbolic significance for the Hungarian court. One could almost say that in this decision, as well as in the subsequent decision on suspending the statute of limitations, the Hungarian jurists were trying to posture themselves as exponents of Western values. They were becoming, in effect, more Western than the Westerners.
Some strict constructionists might argue that the Hungarian Court exceeded its mandate by construing the relevant provisions of the Hungarian Constitution so boldly. But that my view. Preliminarily, how do we know precisely what the mandate of the Hungarian Constitutional court is? That mandate is being worked out as the court takes a bold step, encounters criticism, and then either cuts back or goes forward with its innovations. It cannot be the case that at all times, in all places, the rule demands only that judges apply statutes or their constitution precisely as written. Indeed, the Communist conception of socialist legality required that judges surrender their personalities to the political view embodied in the statutory law. Independent judges must be able to think imaginatively and innovatively about the law they are called upon to interpret. The judges of the Hungarian Constitutional court are not to be faulted on the ground that they might have thought a little too creatively about their problem.
Western observers may make the mistake of thinking of these constitutional courts in Eastern Europe as court in the narrow sense. The better analogy for the Hungarian Constitutional Court might be that it functions like an upper house of Parliament-something like House of Lords. There is only one chamber in the Hungarian Parliament. When the court rejects a statute as unconstitutional, the lawmakers set about the task of finding a version of the legislation that will pass muster. Their response to the decision on the statute of limitations was to enact another bill based on a distinct theory-namely that the statute of limitations does not run on war crimes committed in 1956. They used the same technique of responding with altered legislation in the field of privatization, which legislation bounded back and forth between the Court and Parliament several times. Also, it is important to keep in mind that the Hungarian Parliament can amend the Constitution by the simple procedure of mobilizing a two-thirds vote. Thus the rejections of legislation by the Constitutional Court have no more power than a veto by the American President:27 in each case, the rejection can be overturned by a two-thirds vote of the legislature.
The quest for the rule of law in Eastern Europe has moved from the streets to the arenas of political discourse and to the step-by-step dismantling of the Communist infrastructure in legal and political thought. The paternalist residue of Communist thinking profiles the government in the taxi strike as a surrogate parent, in the Vegvari dispute as a chiding teacher, and in the behavior of the Constitutional court as wise philosophers restraining the will of the masses. These images of the parent, the teacher, and the philosopher seem to be the residue of an authoritarian legal tradition. The transition to democracy may well require a lowering of expectation and a deflating of images. The rule of law seems to flourish when power is expressed in orderly bureaucratic behavior. On this view, the law takes the place of the authority expressed by parents, teachers, and philosophers.
1. Antonin Scalia, The Rule of Law as a Law of Rules, 56 UNIVERSITY OF CHICAGO LAW REVIEW 1175 (1989).
2. Joseph Raz, The Rule of Law and Its Virtue, in Joseph Raz, the authority of law 210 (1979) (this is Friedrich Hayek’s definition, endorsed by Raz).
3. Ronald Dworkin has distinguished himself by arguiing this view in a variety of contexts. See infra the exposition of his views at pp. 32,35,37.
4. On the use of the Hebrew term in the Bible, see the discussion of the debate between God and Abraham in Genesis 18, 19 discussed in Chapter 9 below.
5. See, e.g., G.W.F. HEGEL, PHILOSOPHY OF RIGHT (T.M. Knox trans. 1952).
6. This is not necessarily the case. A legal culture could well collapse the distinction between Recht and Gesetz, and treat the rules laid down as conclusive Kelsen. See infra the discussion of positivism at pp. 32-33.
7. See, e.g., Carlos Nino, The Ethics of Human Rights (1991); Richard Tuck, Natural Rights Theories: Their Origin and Development (1979).
8. See supra notes 1 and 2.
9. U.S. Const. Amend. V, and amend. XIV, § 1.
10. Palko v. Connecticut, 302 United States Reports 319 (1937).
11. See Herman Belz, Constitutionalism in The Oxford Companion To The Supreme Court Of The United States 190-92 (Kermit L.Hall ed., 1992).
12. For further discussion of equality, see infra Chapter 10.
13. Lochner v. New York, 198 United States Reports 45 (1905).
14. Roe v. Wade, 410 United States Reports 113 (1973).
15. See Robert H. Bork, The Tempting Of America: The Political Seduction Of Law 143-85 (1990).
16. One is reminded of Justice Stewart’s famous aphorism about pornography: “I know it when I see it”. Jacobellis v. Ohio, 378 United states Reports 184, 197 (1964) (concurring opinion).
17. Some American leftists seem to doubt whether law can ever be a neutral standard. See The Politics Of Law: A Progressive Critique (David Kairys ed., 1982); Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale Law Journal 1 (1984).
18. For more on the theoretical aspects of the debate, see George P. Fletcher, The Nature of justification, in Action And Value In Criminal Law (Steven Shute et al. Eds., 1993).
19. Hungarian Const. art. 2 § 1: The Hungarian term jogallam is a literal translation of the German Rechtsstaat.
20. This summary of the court’s opinion is based on the English translation of the Resolution of the Constitutional Court of Hungary, No. 11/1992. (III.5)AB, on file with the author.
21. Id. Art. 57, § 4. The language of this provision is in fact ambiguous. Does not require prior legislative definition of offenses but merely that at the time of commission the offense is unlawful according to principles of Recht (magyar jog szerint).
22. BverfGE 25, 269 (Decision of the Constitutional Court 1969).
23. The Death Penalty Case, Alkotmanybirosag [Constitutional Court] 107 Magyar Kozlony, U.T., 1, 1 (1990).
24. For an analysis of conflicting trends in the earlier Supreme Court jurispridence on the death penalty, see George P. Fletcher, Rethinking Criminal Law 336-340 (1978). On recent complexities, presented in a highly readable form, see David Von Drehle, Among The Lowest Of The Dead (1995).
25. Furman v. Georgia, 408 United States Reports 238 (1972).
26. This document is available in Basic Documents Supplement To International Law: Cases And Materials 151-60 (Louis Henkin et al. Eds., 3d ed. 1993).
27. U.S. Const. art. I, § 7.