3. Democracy, the rule of law and constitutionalism

Democracy and the rule of law support each other. Some form of legal monitoring of democratic transitions is necessary to facilitate the stability of the process and engender trust between participating parties to the transition. Reflecting on this particular interplay between the continuity of legality and the discontinuation of the political regime’s legitimacy, some scholars introduced the concept of ‘coordinated transition’ and ‘regime change’ (Kis 1995), meaning negotiated political transition combined with legal continuity and formalism.

Between legal reforms and political revolution, there is a broad spectrum of opportunities for coordinated regime changes. Legal continuity means limitating political change to a constitutional and legal form that relies on a regime’s own constitutional rules of change. However, this form of transition facilitated by legal instruments can succeed only in political societies where the authoritarian leadership and its opposition are able and willing to negotiate and recognize each other’s political interests and goals. In this political condition, the importance of law rapidly grows because it both stabilizes the process of negotiation and instrumentally supports the enforcement of negotiated changes.

Democratic transition and the rule of law

General discussions about the concept of the rule of law can hardly be avoided, and two fundamentally different concepts of the rule of law are commonly contrasted during political and constitutional transitions. The first concept is formal, technical and instrumental and signifies any form of government ruling on the basis of laws. The second concept is substantive and based on the political values of democracy and civil rights. While the first concept draws on the distinction between arbitrary tyrannical rule and non-arbitrary law-governed political power, the second draws on the distinction between the constitutional democratic state and non-democratic forms of government.

Applying the formalist concept of the rule of law, state authorities are expected to act in accordance with the laws, irrespective of their content and political context. This commitment itself reduces the risk of uncertainty and unpredictability associated with arbitrary power and may facilitate stability and trust during transitions. This concept of the rule of law, however, may immediately attract the objection that modern politics and law have experienced extreme situations in which predictable and clear laws were just a façade for the worst political crimes and genocides. Every dictatorship has its system of positive laws but they would hardly be referred to as rule of law systems. Furthermore, in some systems, the politics of ‘a dual state’ (Fraenkel 1941) is common, effectively exempting the ruling class from jurisdiction and laws applicable to the rest of society. Other systems enact such grossly unjust, repressive and discriminatory laws that they have been labelled ‘unlawful states’ (Unrechtsstaat), such as the GDR (Marxen & Werle 1999).

These jurisprudential disputations are strongly echoed in legislative and judicial bodies during transitional times. For instance, the Constitutional Court of Hungary, established during the process of democratic transition in the country, ruled that ‘there is no substantive distinction between legal rules enacted under the Communist regime and since the promulgation of the new Constitution.’ (Paczolay 1993: 34) However, these early conclusions by the court regarding legal and constitutional continuity and discontinuity are in stark contrast, for instance, to the Czechoslovak Constitutional Court’s distinction between formal legal continuity and the notion of the democratic rule of law, substantively different from socialist legality (Přibáň 2007: 156-163).

These problems with the rule of law and its political uses show how important legitimacy through the democratic rule of law is in the process of political liberalization and democratization. Legalism is inseparable from the liberal democratic state, the concept of individual rights, and an independent judiciary protecting these rights against the oppressive power. However, the formalist rule of law may be instrumentalized by the authoritarian regime to enforce repressive and discriminatory policies, such as in apartheidSouth Africa. It is, therefore, criticized by substantive rule of law theories that identify the rule of law with the protection of the rights and principles of democratic statehood (Dyzenhaus 1998).

Nevertheless, democratic transitions also reveal the importance of legal formalism and the possibility of using the existing constitutional and legal framework of an authoritarian regime as a vehicle of democratization and political consolidation. This is precisely the role of constitutional reforms initiated by an authoritarian regime or interim constitutions negotiated between the regime and the democratic opposition.