Article by Leszek Garlicki
One of the terms most often used in the teaching of law in the East European socialist countries is ‘legality’ (praworzadnosc). It is a condition in the life of the state when the law regulates all issues on the functioning of the state organs and the legal situation of the individual; the existing legal regulations are being observed by the organs, agencies and institutions applying this law; and sufficient guarantees enable the individual to defend his rights and liberties if the law is broken in any way. Therefore, the notion of ‘the law’ as applied to the individual and as implemented by that individual to vindicate his rights is of crucial importance in defining the real meaning of legality.
In this respect, the theories adopted in Eastern Europe strongly refer to the nineteenth century traditions established in Europe, which differ significantly from the Anglo-American ‘rule of law.’ The notion of law—and consequently, the notions of legality and its guarantees—is shaped by an antagonistic relationship between the legislative and the executive (hereinafter called the state administration) branches. Another basic assumption is that of the sovereign position of the parliament and its legal regulations. The French understanding of an Act of Parliament as a manifestation of the ‘volonté générale’ merges with the Soviet doctrine of the unity of state power in Eastern Europe.
The law is considered on two fundamental levels. Acts of Parliament, such as statutes, have a special legal position and are a reference in evaluating both the conduct of the citizens and the activities of other state organs. Rules issued by the state administrative organs are binding legal regulations that are subordinate to, and must be in conformity with the statutes. Thus, statutes of parliament establish a framework for both the individual and the state administration. Regulations of the administrative organs must fit into this framework, and procedures are required to assess whether these regulations are in conformity with statutes of parliament. Thus, the traditional understanding of law and legality is based upon the antagonistic position of parliamentary and administrative legislation. It is also based on the recognition of the necessity to establish mechanisms that guarantee individuals protection against administrative authorities, either through general regulations, or through concrete ‘decisions' implementing the law in individual cases.
The state constitution, however, is subordinate to parliamentary statutes. Such an approach may be justified on the grounds of history and politics. In the traditional doctrines of the European continent and the socialist states, the constitution was considered to be an ideological and political document, rather than a direct source of law. Accordingly, at least during the first two decades after World War II, in Eastern Europe the constitution was treated as an august document that provided the fundamentals of the system, but had no direct application in the life of the State and the citizens. Statutes of Parliament formed the body of legislation on which the courts and other legal agencies relied, and the constitution was mentioned only for purposes of interpretation. There were no procedures established to review the constitutionality of the acts of parliament. The doctrine rejected any control of the legislative powers of parliament by non-parliamentary agencies as a contradiction of the principle of unity of state power; thus judicial review of constitutionality was out of the question. It was assumed that in passing a statute, the parliament considered it to be constitutional and that mechanisms of political authority were an adequate warranty.
This doctrinal approach already began to change in the sixties and a common opinion was that the legal significance of the constitution should be recognized because it is the highest law of a State. Today, it is generally agreed that the constitution is of higher rank than other parliamentary statutes or resolutions and that acts of parliament should conform to the constitution. We will see, however, that different countries are translating theory into practice through a variety of procedural solutions. This is how the system of guaranteeing legality is shaped and understood as a system of protecting individual rights and liberties from infringement by the state administration through statutes of parliament.
It commonly is recognized in East European countries that court proceedings provide a procedure that most fully guarantees individual rights and liberties. At least for the last two decades, the courts have been recognized as the fundamental custodians of individual rights and liberties. Thus, it seems fundamental that the jurisdiction of the courts should encompass all cases or controversies in which at least one of the parties is a private party.
In a majority of East European countries, the mission of the courts is limited in a similar way. The courts generally are considered to be the fundamental and necessary custodians of the individual's status. They play no other role and are not considered to be a necessary party in resolving disputes in which no individual participates directly. In a majority of these countries it is permissible and proper to exclude cases between units of the state economy from the jurisdiction of the courts. In almost all of these countries, the participation of courts in resolving disputes within the system of state organs or within the broadly understood political system is repudiated. The courts are not considered to be arbiters in all legal controversies arising in the socialist state. Therefore, any controversy involving the application of the constitution by various state administrative bodies remains outside the scope of judicial review. The courts cannot be regarded as universal custodians of the state constitution, and no legal theory attributes such a role to them. The primary mission of the courts is to protect the individual in his relations with the state administration and to ensure that the law is applied properly. The role of protecting the constitution is secondary.
The belief that courts are the fundamental and necessary custodian of individual rights and liberties did not win immediate recognition in socialist countries, and even today the scope of judicial review differs significantly among the individual countries. The principle that penal and civil cases should be decided solely by courts of law is generally accepted. Constitutional issues arise rarely in these cases and court decisions do not mention the articles of the constitution that provide for individual rights and liberties. The jurisdiction of courts in administrative disputes varies in each country. Generally, courts review individual administrative decisions to ensure their conformity with parliamentary statutes. Nevertheless, constitutional issues appear more directly in these cases than in penal or civil cases.
The introduction of constitutional jurisdiction is unusual. Presently, these cases are not being decided by ordinary courts, but by specialized judicial organs. The establishment of such organs introduces an important extension of the courts' activities and compels courts to directly apply and protect the constitution. Similar effects may appear in vesting the courts with the power to decide cases that are outside the traditional relations between the individual and the state, such as disputes over the validity of elections, collective employment disputes, and disputes between the state and various self-governments.
About the Author
Leszek Garlicki. Professor Warsaw University, Faculty of Law and Administration.
Citation
61 Tul. L. Rev. 1285 (1987)