Measures to Dismantle the Heritage of Communism in Eastern and Central Europe: Human Rights’ Context

Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol, Nos. 62/63, pp. 233-248, 2010

16 Pages Posted: 12 Feb 2012

See all articles by Jakub J. Szczerbowski

Jakub J. Szczerbowski

SWPS University of Social Sciences and Humanities

Paulina Villanueva Piotrowska

University of Burgos

Date Written: 2010

Abstract

Transition from communism to democracy has been a multilayered process. On the surface there appears to be a change of government and economy, but deeper there can be found deep changes in the philosophy of the legal system, by means of which a set of bureaucratic centralized institutions have been replaced by the institutions of a civil society. The principles of social justice have been superseded by the principles of nondiscrimination, while the rules of legal interpretation were changed from the strict model of positivistic interpretation to the argumentative model, in which the Constitution is a set of competing values and the law is a tool for finding the right balances between them. This evolution has amounted to a fascinating merger of politics and law, previously unseen in our legal history.

It took a long time for Central and Eastern European countries to reach the point where human rights could not only be acknowledged but also respected. Forty years of a totalitarian regime was a way too long period of lack of recognition for many human rights. The interest in the issue of dismantling the heritage of the communist system has been since increased by the needs of the general public, which does not consider the transition process as finished, until that past is dealt with. Although 20 years have already passed since the collapse of the communist regime in Eastern Europe took place, society still calls for a fair settlement with the past.

In the countries liberated from totalitarian regimes the first thing to do was to reconstruct the organization of the state, to establish democratic authorities and to reform the economy. But immediately afterwards, came the need to deal with the past, and it seems that this stage of transition was and is still unavoidable. This is why we find ourselves in a position where we need to deal with all the injustice and harm from the past, without rejecting benefits that the concept of human rights provides.

The question «why it is so important that the heritage of former communist regimes be dismantled» was indeed asked at the beginning of the transition process. It brought then an easy answer: to protect democracy. But the same question asked after twenty years of rather successful democratic life raises doubts about its fairness and timeliness. Even if it is clear that the nation demands and even needs the former regime to be totally dismantled, the question of how to achieve this without violating human rights is still a formidable one. During twenty years of democracy, Europeans have changed their mentalities and what seemed to be ethical at the beginning, is now considered inappropriate. In 1989 hardly anyone asked the question how to overcome totalitarian heritage without violating human rights, but now this is something that cannot be even dreamed.

Keywords: democratization, lustration

Suggested Citation

Szczerbowski, Jakub J. and Piotrowska, Paulina Villanueva, Measures to Dismantle the Heritage of Communism in Eastern and Central Europe: Human Rights’ Context (2010). Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol, Nos. 62/63, pp. 233-248, 2010, Available at SSRN: https://ssrn.com/abstract=2003356

Jakub J. Szczerbowski (Contact Author)

SWPS University of Social Sciences and Humanities ( email )

Chodakowska 19/31
Warsaw, 03-815
Poland

HOME PAGE: http://swps.edu.pl

Paulina Villanueva Piotrowska

University of Burgos ( email )

Hospital del Rey, s/n
Burgos, 09001
Spain

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