Academic journal article Law & Society Review

Reconstituting Paradise Lost: Temporality, Civility, and Ethnicity in Post-Communist Constitution-Making

Academic journal article Law & Society Review

Reconstituting Paradise Lost: Temporality, Civility, and Ethnicity in Post-Communist Constitution-Making

Article excerpt

This article focuses on constitutional developments and legal policies in Central Europe since 1989 and elaborates on their temporal analysis with special emphasis on the distinction between demos and ethnos in the political and legal discourse. Using various social theories of time, identity, and codification of social traditions, I argue that the difference between civility and ethnicity does not involve simply a conflict between liberal democratic aspirations and ethno-nationalist myths of authoritarian politics, but rather represents two distinct traditions manipulated by political agents and codified in the process of recent constitution-making. The process of selecting different traditions and political manipulations of the past is reflected at the level of both constitutional symbolism and specific governmental policies in post-Communist Hungary, Slovakia, Poland, and the Czech Republic. The final part of the text analyzes relations between the abstract symbolic language of constitutional documents and concrete, "ethnos-" based legal policies implemented in these countries of Central Europe.

Introduction

The processes by which constitutions have been created in the post-Communist countries of Central Europe have been subject to extensive legal and political scientific analysis. This analysis often associates the concept of civil society with democracy and liberal values and contrasts it to the authoritarian and populist nature of ethnic nationalism. This distinction between the civil and ethnic foundations of political societies is undoubtedly theoretically insufficient, yet it has been the main grounds for criticism of constitutional and political developments in Central Europe since 1989.

In this article, I pursue a different, sociolegal analysis of these constitutional developments using various social theories of time and collective identity and their codification. Instead of pursuing an ideological critique contrasting civil society and ethnic nationalism, I analyze these two phenomena as part of the more general social process of constituting and codifying new identities in the post-Communist period of discontinuity. An indispensable part of this process is the re-entry of ideologies, traditions, and identities repressed by the Communist regime in the emerging public domain and new constitutional documents.

In the course of analyzing the different ways in which constitutions operate in post-Communist political society, I argue that the conflict between demos and ethnos in post-Communist Central Europe cannot be addressed as simply a conflict between the liberal democratic imperatives of the present and the politically dangerous, ethnic concerns of the past. The difference between civility and ethnicity has to be perceived as the difference between two distinct traditions of the modern political history of Central Europe that are manipulated by political agents and codified by means of constitutional law. The first part of this article outlines the theoretical background of the problem of collective identities, focusing on their temporal self-reflections and codifications. The second part critically analyzes the ideology and tradition of civil society and its different uses during the political and constitutional transformations in post-Communist Central Europe. The third part critically assesses the distinction between ethnic and civil identity and its manifestations in post-1989 Central Europe. The final part discusses the responses made to the civil/ethnic distinction in Central European constitution-making and governmental policies since 1989.

Constituting Political Time: The Synthesis and Selective Codification of Collective Identity

The legal system, especially constitutional law, has been essential to the emerging public sphere and discourse of the "political societies in transformation" that have pursued the establishment of a new collective identity based on the liberal democratic rule of law in Central Europe. …

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