Making Amends After Communism

Vojtech Cepl & Mark Gillis

As breathtaking and inspiring as the revolutionary changes in Eastern Europe since 1989 have been, they could not and did not sweep the slate clean as regards people's way of life and basic attitudes. To believe that the fall of communism would mark a decisive turn, after which the countries of this region would be "out of the woods," was false optimism of a high order. Now, more than five years down the road, we suffer from the danger of complacency, and face the possibility that the very significant transformation which is taking place could be slowed or even reversed. The revolutionary changes that we have witnessed, we submit, are in their nascent stage and quite vulnerable. Only if people at large change their attitudes, their ways of thinking, and their behavior can these welcome changes be made secure.

The complex transformation that has swept Eastern Europe over the past half-decade does not lend itself to brief treatment, so we will single out just one aspect of it. That aspect is the problem of coming to terms with the past or, more specifically, the problem of lustration (a screening whereby those whom secret-police files show to have been collaborators are barred from holding certain key governmental or societal posts), and the condemnation of the former regime's crimes. Of all the transformation's aspects, this one is the most elusive and the least amenable to concrete discussion. We will plunge ahead anyway because we think that it lies at the crux of the whole process. The case of Czechoslovakia and the Czech Republic is the case that we know best. It is also the most instructive, for the Czech Republic has taken certain routes to change [End Page 118] that other countries have either avoided completely or traveled only partially.

Obviously, each of the region's countries faced its own unique set of historical conditions. In Hungary, for instance, the rejection of communist orthodoxy in favor of market models began 20 years earlier and took place more gradually. Poland, to cite another case, saw the greatest popular resistance to communist intrusions from the very beginning. Polish agriculture was never collectivized, and Poles never allowed the Roman Catholic Church to be entirely suppressed. Historical conditions continue to operate, of course, and so may still account for the differences in the transition processes that are now taking place.

Not long after the Berlin Wall fell, Ralf Dahrendorf observed that it would take six months to reform the political systems in Eastern Europe, six years to change the economic systems, and sixty years to effect a revolution in people's hearts and minds. Dahrendorf probably borrowed his line about hearts and minds from Tomá s Masaryk; what is being cited is something close to what the American social critic Michael Novak means by "moral culture."

Our view on this matter is simple: Without rehabilitation, lustration, and restitution, there will be no transformation.

The slowest, most complicated, most elusive--but also most crucial--part of any process of transition is the necessary metamorphosis of the norms of human conduct. These norms exist in the minds of the people, and form the basis of their day-to-day behavior and shared values. The norms inform their thought as to what is right or wrong, proper or improper, appropriate or inappropriate in particular situations, or even what they must do to get by in life. In this way, they know when they are bound to keep their promises, when it is proper or prudent to ignore a legally prescribed rule or to bribe an official, when a person's conduct amounts to a provocation, and, most importantly, when they can object to improper actions by the state.

Knowledge of such norms comes not from formal study but rather from life experience within a given society. These norms are psychological phenomena, part of human consciousness. They are what is foremost in people's minds--not some involved theoretical account of how an independent judiciary protects rights or how a second house of the legislature can act to check possible abuses of power by the first.

Norms evolve, but gradually. They do not change overnight. Laws can impose change on political and economic systems, but you cannot legislate new attitudes. Rather, these change only when there is a serious alteration in the real-life "rules of the game." Long-held habits tend to be strong; their inertia can make it hard, even impossible, for some people to adapt to change. The slow pace at which norms usually evolve means that they are not susceptible to change in a revolutionary situation. [End Page 119]

This poses a great problem for the success of the transformation as a whole. In any revolution, there will be only a limited time available to make sweeping changes; before long, people will want to settle back down into a normal existence. One solution is for the government to take the lead and make "changing hearts and minds" a priority. Certainly, one of the most important functions of any government is to instill in people the main norms and values of a society. In a time of revolution, when these are being transformed, it is all the more important for the government to take the lead in this respect.

A few years ago, one of us wrote an article on lustration entitled "Ritual Sacrifices." ¹ In retrospect, we find that an unfortunate choice of title. It suggests scapegoating, the practice of making innocent individuals pay the price for transgressions of which society as a whole is guilty. It also suggests revenge, and lustration properly so called is not motivated by revenge. Had revenge been our motive, we in Czechoslovakia (and later the Czech Republic) could have found more effective ways of going about it, ways that inflict a far greater sanction than lustration ever did or ever will.

Restoring the Moral Order

If it could be done over again, that essay would be called not "Ritual Sacrifices" but "Ritual Purification." The latter term expresses the old notion that when evil is introduced into the body politic--whether by usurpers or by legitimate rulers acting immorally--the moral universe becomes deranged, with effects that are somehow manifest even in the natural world (crop failures, pestilence, bad weather, strange astronomical phenomena). As we read in the tragedies of Sophocles and Shakespeare, the proper balance can be reestablished only by removing the wrongdoers, meting out to them a just punishment, and reestablishing the status quo ante. Granted, the idea seems outdated, but there is something to it nonetheless. Personally, we do not believe that a moral order exists independently of human consciousness. If a moral order exists at all, it forms a part of the general order of the norms of human conduct and of human values that we are discussing.

After communism fell in Czechoslovakia, the new regime recognized that while it would not be possible to make full amends for all past injustices, there were measures available that would help to make good on the promise of principled and responsible government. Principled government exists when the state conducts itself according to the rule of law (usually including a fundamental law, or constitution). Responsible government exists when all deviations from law-governed conduct are subject to rectification. The available measures were of three sorts:

1) Restitution. This involved the return to rightful owners of actual property that the communist regime confiscated without compensation, [End Page 120] or that owners forfeited as a result of one of the communist laws (which were really more decrees than laws in the sense that we have been using). The postcommunist government's program of voucher privatization also contained an element of restitution because the industrial wealth that was distributed through vouchers represented fruits of the people's labor that had been denied them for decades.

2) Rehabilitation. This was the process of quashing or shortening sentences for people who had been punished unjustly or excessively by the communist regime. It often included some financial compensation to make up for the hardship suffered.

3) Prosecution. The Act Concerning the Lawlessness of the Communist Regime, passed in 1993, and the subsequent Constitutional Court decision upholding its constitutionality, confirmed that it is constitutionally permissible to prosecute those responsible for serious official crimes committed during the communist era. The objection that the statute of limitations had expired, and thus barred such prosecutions, was considered and rejected. ²

There is by necessity a strong moral element in any political revolution: to exchange one system of government for another is a powerful declaration that the old system was wrong, and that the one replacing it is right and good. Nonetheless, calls for the explicit denunciation of the old regime must face the objection that somehow, something improper is being recommended: after all, are not such "value judgments" outside the province of a democratic, secular state whose watchwords are value-neutrality and tolerance of competing ideas?

Here we must take exception to the belief, common in Central and Eastern Europe, that ideology is in and of itself an evil. The notion that respect for differing views requires the absolute rejection of any and all ideology is false. As critics of this misguided notion have made clear, respect for democracy and human rights also represents an ideological commitment.

When the Constitutional Court of the Czech Republic upheld the Lustration Law and the Act Concerning the Lawlessness of the Communist Regime, it decisively rejected the idea that democracy represents an entirely neutral value system. The Court held that the law-based state, far from being a merely formal entity that can be associated with any sort of values or rights, must first and foremost be committed to norms that are compatible with the fundamental values of human society as expressed in the Charter of Fundamental Rights and Basic Freedoms, which forms part of the fundamental law of our democratic state. To concede, even by inaction, that a totalitarian dictatorship could be a law-based state would be false, and set a dangerous precedent for the future. Can crime become noncriminal if it is organized on a large scale, backed by overwhelming power, and carried out over a long span of time? To admit that the answer could be yes would be to undermine [End Page 121] the credibility of the present law-based state and perhaps of the very notion of the rule of law.

Some observers of the present transition in Eastern Europe seem unaware of how crucial it is that things be called by their right names. Basic truths must be recognized and vindicated against the sophistries of neocommunists who claim that the events of the last six years have involved nothing more than mere differences of political opinion. The transition from totalitarianism to democracy in Eastern Europe is not like the transfer of office from one Western political party to another after free elections. Rather, it is a revolution, even if a velvet one. Today, neototalitarians are swathing themselves in the regalia of democracy, mouthing pleasant and popular words and exploiting the natural tendency that people have, when pressed down by present ills, to look back nostalgically at the "good old days" of the recent past. Such nostalgia can be dangerous, however. Many people forget the atrocities of the past, while clever neocommunists try to make democracy the scapegoat for every new problem, from rising crime rates to more competitive job markets.

Another argument against the pursuit of a fully realized transition resorts to the principle of legal continuity or certainty. In this view, it is destabilizing to overturn formally legal past actions because the rules have changed. Yet the real meaning of legal certainty is not only that the state should act in accord with formally valid law, but also, and more importantly, that it must act in a manner that accords with the fundamental principles of a democratic society, and must always correct itself if it fails in this core duty.

The State as Teacher

If democratic values are truly and lastingly to be imparted to the people, the state must have a hand in the effort. The state and its laws always act as teachers of society; at no time is this role more important than during a momentous political transition. It is incumbent upon the state to guide the people, to show them the difference between right and wrong. I am not speaking of dictatorship (Eastern Europe has seen enough of that), but of simple leadership. The people had a revolution to ensure that society would be governed on the basis of certain values, and they elected leaders, not wafflers, to point the way, to show what those values mean in new and unfamiliar contexts. For the state simply to step back and let the people "sort it out for themselves" would be irresponsible. It would also be an invitation to trouble at a time when people are experiencing tremendous confusion about values and desperately need good examples to follow. Can anyone doubt that governments and their officials have a duty to condemn and oppose skinhead violence against Gypsies even though many citizens may [End Page 122] dislike Gypsies and sympathize somewhat with assaults against them? Should the law not discourage petty thievery, even if it is a widespread, hard-to-break habit that lingers from communist times?

Among the agencies of the state, the Constitutional Court in particular has a great capacity to exercise moral leadership. As Eugene V. Rostow once remarked of the United States Supreme Court, a high court is an educational body, and its members are inevitably teachers in a great and vital national seminar. ³ The state can prove a great moral authority in this respect only if, over time, the people come to accept the general correctness of its actions and come to believe that it has fulfilled the promise implicit in democratic values. If the state fails over time to show true moral leadership and to persuade people that democratic values are the correct ones, its moral authority will wither.

The leadership that we have been describing is not to be confused with paternalism, for the people always have the option of rejecting it. In a well-functioning polity, society rests firmly upon the basis of common values embraced by the preponderance of the people; in such a society there is no need for paternalism, although on occasion there may be a need for clear leadership. In a poorly functioning system--one coming out from under a half-century of totalitarian domination, for example--people often do not know what the basic values of a free society mean in unclear or trying situations, or in cases where their personal interests are at stake. In such cases, they are more apt to seek guidance than to reject it as paternalistic. Nor is there anything wrong with the state and its officials taking a stand in such cases, for how can values command respect if leaders do not espouse them strongly? Let us be clear: we are talking not about coercion, but about public moral leadership that depends ultimately on persuading the people of the correctness of a position, not merely forcing them to submit to it.

It is worth mentioning that official efforts to speed up the transformation of hearts and minds can also yield practical dividends. Lustration, for instance, excludes from governmental power those whose actions have manifested hostility to democratic principles. It also gives democracy a breathing space, a kind of grace period during which it can put down roots without the fear that enemies in high places will try to undermine it (one must keep in mind that these enemies usually have superior experience in the art of wielding official power). Fundamental change in a society requires replacement of its elite. Members of the old communist elite not only have questionable values and loyalties; they are also veterans of an establishment that rewarded traits which are not suited to a democratic, free-market society. What Eastern Europe needs now is not disciplined, obedient apparatchiki, but innovators, entrepreneurs, stubborn, free-minded, even unmanageable people.

The condemnation of the communist regime, as well as the possible prosecution of crimes committed under it, helps to ensure that in the [End Page 123] future no one will be able to make the meretricious claim that communist principles are somehow compatible with democracy, or that communism was somehow "not so bad." Punishing crimes committed under communism could not only help to preclude such bogus historical revisionism, but also help to deter the commission of such crimes in the future. In other words, it is a good precedent all around.

As for restitution, the practical motive for it was a desire to "jump start" the economy by making citizens private economic actors at a stroke. Of the several privatization methods contemplated, restitution appeared to be the most natural, simplest, and quickest, and it had the added virtue of being immediately comprehensible to everyone. The predicted collapse of the judicial system beneath a flood of restitution-related lawsuits never occurred; indeed, the process was relatively free of serious disputes.

It is to be regretted that the problem of transforming the moral culture of postcommunist society is usually considered secondary, if it is thought about at all. Those who say that it is best to draw a thick line and start afresh are not drawing the right lesson from the dearly purchased experience of the communist era. Fundamental change is always painful; if leaders are so worried about short-term popularity that they dread the imposition of necessary but discomfiting policies, they are giving away postcommunist society's chance for genuine transformation.

Vojtech Cepl is a justice of the Constitutional Court of the Czech Republic. The present essay is based on a discussion paper that he delivered to the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe in Strasbourg, France, on 4 December 1995.

Mark Gillis is an American lawyer on the staff of the Constitutional Court of the Czech Republic.

Notes

1. Vojtech Cepl, "Ritual Sacrifices: Lustration in the CSFR," East European Constitutional Review 1 (Spring 1994): 24-26.

2. Mark Gillis, trans., "Judgment of the Constitutional Court of the Czech Republic, December 21, 1993," Parker School Journal of East European Law 1 (1994): 363-91.

3. Eugene V. Rostow, "The Democratic Character of Judicial Review," Harvard Law Review 66 (December 1952): 208. See also Ralph Lerner, "The Supreme Court as Republican Schoolmaster," Supreme Court Review, 1967 (Chicago: University of Chicago Law School, 1967), 127-80.

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