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Political Dissent, Human Rights, and Legal Transformations: Communist and

Post-Communist Experiences

Article  in  East European Politics & Societies · November 2005

DOI: 10.1177/0888325405275987

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Political
10.1177/0888325405275987
East European
Dissent,
Politics
Human and
Rights,
Societies
and Legal Transformations

Political Dissent, Human Rights, and

Legal Transformations: Communist and
Postcommunist Experiences
Jir##í Pr##ibán#

The article focuses on the legacy of political dissent in communist countries

and its impact on postcommunist political and legal transformations. The
first part describes the nature of communist politics and the legal system
founded on the principle of ‘socialist legality.’ In the following part, the dis-
sident argumentative blend of legalism and natural rights will be analysed
as both a critique of the communist system and a structural precondition of
postcommunist constitutional and legal transformations. The final part will
focus on how the political dissent in communist countries symbolised vir-
tues of civil society and liberal democratic politics based on the rule of law
and influenced the emerging constitutional systems based on the protection
of human rights.

Keywords: political dissent; the rule of law; civil society; constitutionalism;

postcommunism; human rights

In this article, I shall address the legacy of political dissent in

communist countries and its impact on postcommunist political
and legal transformations. After a brief conceptual analysis of
political dissent and its democratic and totalitarian contexts, I
shall focus on the nature of communist politics and the legal sys-
tem founded on the principle of ‘socialist legality.’ I shall argue
that the human rights discourse used by dissidents was a very
effective way to challenge the very nature of the communist legal
and political systems. The mixture of legalist arguments and nat-
ural rights based legal and political morality turned out to func-
tion as both a critique of the communist system and a structural
precondition of postcommunist constitutional and legal transfor-
mations. Furthermore, it symbolised political virtues of civil soci-
ety and liberal democratic politics based on the rule of law. In
this respect, political dissidents significantly contributed to the
liberal and civic project of common European polity. Despite
East European Politics and Societies, Vol. 18, No. 2, pages 1–21. ISSN 0888-3254
© 2005 by the American Council of Learned Societies. All rights reserved. 1
DOI: 10.1177/0888325405275987
general failure of dissidents to capitalise on their past prominent
role in the new democratic conditions in postcommunist societ-
ies of the 1990s, dissident politics often influenced the emerging
constitutional systems based on the protection of human rights. I
shall subsequently conclude by claiming that political dissent has
an important function of an external challenge of the legal and
political systems, which was powerfully illustrated by the
political struggle of dissidents in former communist countries.

Political dissent: A general outline of democratic and

totalitarian contexts
Pluralistic liberal democracies based on the concept of civil
rights and the constitutional rule of law make various forms of
political protest and dissent a structural precondition of their
political system. Civil disobedience campaigns show how central
dissent of individual citizens and political groups can be for dem-
ocratic deliberation and polity. Modern party politics and plural-
ism are based on dissenting political programmes and
worldviews, and ‘pluralistic dissent’ acquires a positive value
within the conception of democratic society on the condition that
dissenting views and conflictual relations are contained by a min-
1
imum ‘overlapping’ and democratic consensus. Democratic
societies therefore can survive despite widespread dissenting
views about basic democratic and liberal values.
Political systems of modern complex democratic societies are
based on the circulation of power between government and
opposition. Political opposition participates in the institutional
framework of decision-making process and acts on the assump-
2
tion of eventual movement from opposition to government. It
therefore is important to distinguish this kind of operational dis-
sent, which is intrinsic to the democratic political system, from
political dissent as an external reaction to the political system,
which is irreducible to the power code of politics.
When addressing the topic of political dissent, political science
and philosophy literature usually focus on the latter concept of
1. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 144-50.
2. Niklas Luhmann, Political Theory in the Welfare State (Berlin: De Gruyter Verlag, 1990).

2 Political Dissent, Human Rights, and Legal

Transformations
dissent. It is commonly described as a form of protest that trans-
gresses the government/opposition duality of modern politics
and its operational dissent, distances itself from immediate aspi-
rations to achieve political power, and resorts to external criti-
cisms of the political system and culture. Nevertheless, it has to
be emphasised that dissent does not confront the system by acts
of terrorism or violence because dissidents would lose their
higher moral ground and become political extremists and terror-
ists driven by the same power code as the system itself. Dissent
therefore has to be distinguished both from political opposition
and violent resistance.
The moral context of political dissent appears to be particu-
larly strong when facing authoritarian and totalitarian regimes
that lack the government/opposition structural difference and
pluralism typical of liberal democracy. In this condition, dissi-
dents simply have to confront the system from the outside and
speak against political reality in general. They provide the only
substitute for political functions of democratic opposition. Moral
calls may be easily detected in pamphlets and writings of a num-
ber of dissidents with fundamentally different political views,
from Alexander Solzhenitsyn to Jacek Kuron. The dissent strat-
egy is often legitimised by the moral principle of humanity and
driven by the belief that there is a higher ground that is binding
for all politics and law.
In authoritarian and totalitarian regimes, the structural condi-
tion of dissent is less complex than in liberal democracies
because it is reduced to the representation of the repressed and
commonly persecuted outside of the political system. An uncen-
sored expression of dissent is perceived as a strong challenge to
the ‘immoral’ political repression. In fact, any attempt to act
autonomously and search for authentic self-creation becomes
dissident because it challenges the government’s claim to control
the totality of society. Dissident calls for ‘antipolitics’ and ‘non-
political politics’ express clearly the external character of political
dissent and its transgression of the totalitarian political system.
Although theoretical and political views of dissidents in commu-
nist countries may be described by some scholars as ‘unoriginal’
3
or ‘simply anachronistic and old hat,’ the central position and

East European Politics and Societies 3

role of dissent in the process of the dismantlement of communist
systems in the late 1980s remains undisputable. This ‘systemic
role’ of political dissent was manifested particularly well during
the process of constitutional and legal transformations in Central
Europe.

Socialist legality: From arbitrariness to automatism

Apart from official political slogans and ideological formulas
legitimating any decisions of the Communist Party, communist
political discourse used the principle of legality and made it a
kind of nonsense comprehensible only to an insider bureaucrat
or legal expert who served the Party’s political goals. Václav
Havel coined the word ptydepe, reportedly invented by his
brother Ivan who is an artificial intelligence expert, to describe
such a nonsensical discourse disguising political manipulation
4
and repression. Although the new artificial language of ptydepe
is to follow scientific principles of rationality and thus erase any
possibility of errors and misunderstandings typical of all ‘natural’
languages, it paradoxically is impossible to use and comprehend
and therefore requires a translation centre and special
‘ptydepists’ empowered to monitor correct usage of the
language.
Despite the fact that legality can deteriorate into an empty
automatic and politically manipulated language danger in any
political system including liberal democracy, linguistic automa-
tism was extraordinarily strong and politically exploitable in the
communist totalitarian legal systems. For that purpose, commu-
nist legal theory even invented the concept of ‘socialist legality,’
which was supposed to be more just and historically superior
than any other legal systems. The ‘socialist legality’ principle
used some formal features of modern rational legality, yet it actu-
ally contradicted the constitutive principles of the liberal demo-
cratic rule of law. The system of communist law therefore could
not be challenged by common democratic procedures, and polit-

3. J. C. Isaac, “The Strange Silence of Political Theory,” Political Theory 23 (1995): 640.
4. Václav Havel, Hry [Plays] (Praha, Czech Republic: Lidové noviny, 1991), 48.

4 Political Dissent, Human Rights, and Legal

Transformations
ical dissidents had to criticise it from the position of an outsider of
the political and legal system.
Communist legal systems were often contrasted with the rule
of law. In her famous and illuminating critique of totalitarianism,
Hannah Arendt suggested that totalitarian regimes represented
the rule of instability and uncertainty that enabled the population
to be effectively controlled by terror and violence. Both the Nazi
and the Bolshevik political systems were typical of the lack of
predictability in their legal, constitutional, and political orders.
Distinctions between the Party and the State were blurred; legal
institutions were overshadowed and dominated by the Party
5
decisions. Law was a facade for political voluntarism.
This description captured well Lenin’s concept of a dictator-
ship as a rule that did not require law, because the bourgeois
legal systems just blurred the violent nature of democratic or any
other form of government.6 Nevertheless, when political con-
cepts and ideals of the Bolshevik revolution of 1917 were con-
fronted with the political reality and problems of the Soviet sys-
tem, Lenin’s revolutionary designs had to be re-shaped or,
indeed, abandoned by the official ideology (although the leader-
ship would have never admitted any flaws in the official Leninist
ideology). The developing communist totalitarian state had to
take a legal and constitutional form to cover repressive party
policy with an image of stability and legality.
New legal doctrines emerged that attempted to explain the
nature of the new political system in legal terms. Vyshinsky’s
legal theory backed Stalin’s unpredictably repressive policy with
7
the concept of socialist legality, which was based on the notion
of radicalisation of the working-class struggle during the period
of proletariat’s dictatorship. Consequently, the state was not to
wither away but rather strengthen its repressive policy against
political opponents.
At the same time, the communist totalitarian system developed
under Stalin during the 1930s, which survived in the Soviet Union
and other countries until his death in 1953, declared itself to have
5. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace, Jovanovich,
1956).
6. Vladimir I. Lenin, “The Proletariat Revolution and the Renegade Kautsky,” in Vladimir I.
Lenin, Selected Works VII (New York: publisher unknown, 1934).

East European Politics and Societies 5

its own historically ‘higher degree’ of legality and
constitutionalism. In 1936, Stalin even adopted a Soviet constitu-
tion that nevertheless was just a rhetorical veil for terror and arbi-
trariness. Isaac Deutscher described Stalin’s constitutional and
legal efforts as a political tactic enabling him to execute oppo-
nents and innocent citizens under the mask of constitutionalism,
8
the rule of law, and liberalism. In reality, no constitutional provi-
sions, and certainly not those that incorporated the humanist ide-
als of enlightened, free, democratic society, were obeyed by the
ruling political élite, especially not the secret police. Under this
constitutional and legal surface, political crimes and atrocities
stretching the limits of human imagination were part of everyday
social life. Socialist legality became synonymous with the sheer
political terror practised by the totalitarian political power, and
the role of communist constitutions was always more ideological
9
than legal.
Nevertheless, this rule of arbitrary terror speaking the lan-
10
guage of general legislation gradually became more limited.
Apart from preserving their power to use arbitrary political terror,
the communist governments gradually used common legal insti-
tutions functioning in a similar way to law in liberal democratic
societies. Parliaments controlled by the Communist Party
enacted laws that were applied by courts and provided citizens
living in those countries with legal security and stability. This
security was obviously very fragile because it could at any time
be broken at the will of the Communist Party. The system was
described as telephone justice, in which courts could decide inde-
pendently unless their deliberations were interrupted by a mem-
ber of the Party élite members who exercised the power to
influence the case.
The parallel enforcement of law according to legal rules and
arbitrary political interests was a typical characteristic of the com-
7. Andrei T. Vyshinsky, Voprosy teorii gosudarstva i prava [Problems of a Theory of State and
Law] (Moscow: Academic Press, 1949).
8. Isaac Deutscher, Stalin: A Political Biography (Harmondsworth, UK: Penguin, 1949), 381.
9. H. Gordon Skilling, The Governments of the Communist East Europe (New York: Crowell
Comp., 1966), 50.
10. Adam Podgorecki, “Totalitarian Law: Basic Concepts and Issues,” in Adam Podgorecki and
Vittorio Olgiatti, eds., Totalitarian and Post-Totalitarian Law (Aldershot, UK: Dartmouth,
1996), 11.

6 Political Dissent, Human Rights, and Legal

Transformations
munist totalitarian regimes. Nevertheless, these regimes were
subject to a number of historical changes that significantly
affected the extent of political repression involved in the enforce-
ment and enactment of laws. In the Czechoslovak case, for
instance, the repression following the invasion of the Warsaw
Pact armies in 1968 never had the character and intensity of the
repression of the early 1950s. Communist repression affected
hundreds of thousands of people and created new ‘second-class
citizens,’ but the regime did not resort to mass imprisonment and
11
executions. It preferred to introduce a policy of ‘normalisation’
that discriminated and persecuted mainly through an elaborated
mechanism of social and economic sanctions and remunera-
12
tion.
Reflecting political, cultural, and social changes in Czechoslo-
vakia in the 1970s, Václav Havel and other dissidents started to
13
speak about a ‘post-totalitarian’ political system. Havel did not
mean by this that the totalitarian nature of the communist system
would disappear, but that it was, in a way, fundamentally differ-
ent from totalitarianism as usually understood. It was not
founded on open political terror or violence, but on the
ritualisation of public life and a kind of ‘blind automatism which
14
drives the system.’ The overwhelming majority of the popula-
tion was not involved in open confrontation with the regime and
only had regularly to express loyalty to the existing political
system.
Another Czechoslovak dissident, Milan Šimecka, brilliantly
described this state of petrified stability of the communist regime
as a special kind of social contract between the ruling Party élite
15
and the population subjected to its government. The population
was provided with some guarantee of its material existence but in
return was required not to interfere in political affairs. Further-
11. Andrew Oxley, Alex Pravda, and Andrew Ritchie, Czechoslovakia—The Party and the Peo-
ple (Harmondsworth, UK: Penguin, 1973).
12. For an analysis of political ‘normalisation’ in Czechoslovakia in the 1970s, see especially Jir##í
Pelikán, Socialist Opposition in Eastern Europe (London: Allision & Beesly, 1976).
13. Václav Havel, “The Power of the Powerless,” in John Keane, ed., The Power of the Power-
less: Citizens against the State in Central-Eastern Europe (London: Hutchinson, 1985), 27.
14. Ibid., 30.
15. Milan Šimecka, The Restoration of Order: The Normalization of Czechoslovakia (London:
Verso, 1984); see also H. Gordon Skilling, Charter 77 and Human Rights in Czechoslovakia
(London: Allen and Unwin, 1981), 53.

East European Politics and Societies 7

more, they were guaranteed a certain autonomy in the private
sphere which was limited to material wealth. P. G. Lewis, for
example, calls this unique political and social condition a ‘con-
sumer-based conservatism.’16 The distinction between the politi-
cal and the private represented a profound distinction between
official enthusiasm and private cynicism. Ritualised accommoda-
tion to the regime was to some extent compensated by an
improvement in economic standards of living, which, neverthe-
less, subsequently appeared to be only temporary.
If the original modern fiction of the social contract created the
conditions of modern dynamic politics, the communist social
contract was a quite opposite attempt to maintain a political sta-
tus quo. Communist political power had a total control over pop-
ulation, yet, in this unequal condition, it offered its subjects a
minimum of social welfare and consumerism in exchange for
ritualised loyalty. Even though the purpose, namely, the creation
of political stability, is the same, the two contracts are quite dis-
tinct because the communist social contract exists between
unequal subjects, and its primary goal is the creation of a deper-
sonalised, ritualised political environment with which citizens
can never identify.
The legal system was an important part of the political sphere
where such official enthusiasm had to be manifested. Under the
surface of legality, the Communist Party continued to control the
whole social body. Political terror did not vanish, but was limited
and exercised only against a tiny minority of dissident groups
and human rights activists. This ‘limited use of terror,’ limited in
its intensity and social targets, nevertheless had a significant
political function because it reminded the population to approve
the system ritually as all the instruments of political violence and
open repression were still alert.

Charta 77 movement: Human rights and official laws

It turns out that, in their late stage, the communist systems did
not lack legal stability and the arbitrary use of political violence

16. Paul G. Lewis, Central Europe since 1945 (London: Longman, 1994), 178.

8 Political Dissent, Human Rights, and Legal

Transformations
was not their dominant mode of government. The systems con-
tained the strong tendency to autarchy. Socialist legality was to
contribute to the stability of socialist societies in a way similar to
legality under the liberal democratic rule of law. Law and order
had a totalitarian character, but the whole system was looking
desperately for legal legitimacy, both in internal politics and at
the international level. A typical example of these efforts to
achieve legal legitimacy was the Helsinki peace process in the
1970s, which eventually led to the strengthening of the position
of dissident movements in all the countries of the Soviet bloc.
‘The third basket’ of the Helsinki Final Act concerning human
rights protection inspired the Charta 77 movement in Czechoslo-
vakia and other dissident activists throughout communist
Europe.
The basic strategy of the Czechoslovak dissidents was to
exploit the distance between the concept of socialist legality and
political reality. Charta 77 and other dissident human rights
organisations constantly tried to point out that the whole nature
of the regime, which claimed to be socialist, legal, and constitu-
tional, was in fact bluntly discriminatory, repressive, and broke
international standards of human rights and civil freedoms, and
therefore was illegitimate. As Barbara Falk points out, ‘Embed-
ded in the notion of human rights is the existence of a legal sys-
tem founded upon the rule of law that can ensure both protection
and implementation—some type of Rechtsstaat that is decidedly
not in keeping with even the most liberal version of the Soviet
17
model.’ The dissident struggle for human rights in the 1970s and
1980s therefore was primarily a struggle to expose the
illegitimacy of the Czechoslovak communist system.
From its very beginning, the Charta 77 strategy was to operate
within the discourse of legality. It used the need to respect the
law to point out the ‘doublespeak’ nature of the principles of
socialist legality and the communist regime. The drafters of the
Charta 77 document appealed to the International Covenant on
Civil and Political Rights; to the International Covenant on Eco-
18
nomic, Social and Cultural Rights; and to the Helsinki Final Act.
17. Barbara Falk, The Dilemmas of Dissidence in East-Central Europe (Budapest, Hungary:
Central European University Press, 2003), 253.

East European Politics and Societies 9

It was argued that, as the Czechoslovak Socialist Republic signed
these legal documents, they were now incorporated into its legal
and constitutional order. This legalist strategy appeared to very
effective and clearly showed that the language of law meant
absolutely nothing within the communist system of justice,
where the decisions of the judiciary ultimately were made
outside of judicial institutions.
Totalitarian domination by the Communist Party was consti-
tuted on three main pillars—the secret police, the army and para-
military organizations, and the courts and prosecutors. It is typi-
cal of the later-stage communist regimes that they diminished
and blurred the role of the paramilitary organisations and the
army and shifted much of their power into the system of judicial
power and legal institutions. Instead of the party militia, it was
courts and prosecutors who had become the real ‘iron fist’ of the
Party and working class. To show the discriminatory and repres-
sive character of this phase of the system therefore required the
unmasking of the machinery of justice and socialist legality by
showing its real political function.
The Charta 77 declaration was not a political programme but a
list of human rights and civil liberties violations by the communist
regime. It emphasised the well-known fact that the political and
legal actions of the regime were inconsistent with international
human rights conventions. Although very mild and careful in its
criticisms and demands, the Charta 77 declaration met with a hys-
terical reaction from the regime and its media, and the anti-
Charta campaign was reminiscent of previous ideological emer-
gencies and their demands for extraordinary rituals manifesting
the popular support for the communist regime.
The communist legal system was based on the notion of the
individual’s duties towards the state, which was compensated by
the socialist welfare rights, such as the right to employment
(accompanied by the individual’s duty to contribute to the soci-
ety’s wealth, which practically meant the legal duty to work), the
right to housing (effectively creating a feudal system of the legal
dependence of employees on the employer providing the hous-

18. Skilling, Charter 77 and Human Rights in Czechoslovakia, 209-12.

10 Political Dissent, Human Rights, and Legal

Transformations
ing), access to free health care (seriously compromised by cor-
ruption among doctors and health care executives), and so on.
Socialist constitutions usually listed a great number of rights on
paper presented as the socialist, ‘historically superior alternative’
to the Western ‘bourgeois’ concept of rights. Nevertheless, these
rights could never protect the individual’s interests and auton-
omy because the very concept of ‘socialist’ rights was based on
the supremacy of collective interests formulated by the totalitar-
ian state and enforced by more or less explicit constitutional
clauses prohibiting the use of rights for ‘antisocialist’ purposes.
From a legal and political philosophical viewpoint, the Charta
77 and other dissident movements raised a fundamental question
about the legitimacy of the political system, its law, and its system
of rights and duties. The issue of the nature of socialist legality
had been addressed because the communist system had a para-
doxical double structure. It was based on a widespread and arbi-
trary abuse of power but also declared its acceptance of the prin-
19
ciple of legality. The dissident movements used this
doublespeak in which communists declared a respect for the
principle of legality because it was the most vulnerable part of
the system. Because communist law was never only a set of regu-
lations for human behaviour but also played a symbolic ideologi-
cal function, to disclose the nature of the system it turned out
very useful to operate within legal discourse. Havel even called
this dissident strategy ‘legalist’ and found it to have the greatest
value in the possibility of demonstrating the ideological nature of
socialist legality, its inconsistency with the liberal rule of law, and
also the absurdity of the excuse that communist officials have
observed the law and therefore could not commit any crime.
According to Havel, legality was so important for the system
because it established the system’s legitimacy as a whole before
its own citizens, before the international public, and before his-
20
tory. It established the illusion of legal justice. To show the para-
dox of use of the rhetoric of legality and its constant abuse by the
communist power was to show the illegitimacy of the communist
system and its law.

19. Havel, “The Power of the Powerless,” 69.

East European Politics and Societies 11

 On the surface of this ‘legitimation battlefield’ between the
communist regime and its dissidents, it may seem that the dissi-
21
dent strategy was really legal or even ‘legalist.’ Looking more
carefully at the whole issue, it is, however, possible to unveil a
more fundamental strategy. The dissidents never demanded that
the communist system of justice and administration should obey
its own laws. The legitimation question was, in fact, ‘What con-
tent should the rule of law and legality have?’
According to the dissidents, neither the legal procedures nor
the legal rules of communism could be squared with the princi-
ple of legality and the rule of law. As far as the principle of legal-
ity and the rule of law is concerned, legal rules and procedures
must represent certain values, political principles, and proce-
dures supporting the separation of political power. According to
political dissidents, the rule of law also had to be founded on the
protection of human rights and not on the concept of socialist
rights that had been effectively turned into duties by communist
constitutions.

From a parallel polis to the reinvention of civil society

The legitimation strategy chosen by Czechoslovak dissidents
in the late 1970s and 1980s was profoundly influenced by the
concept of universal validity and inviolability of human rights
rooted in a moral discourse. At the same time, it is obvious that
the dissident strategy of legal legitimation is entrenched in a
moral and existential vocabulary that does not perceive morality
as some sphere of rules, prescriptions, and governance, but as
that sphere which opens up the possibility to experience human
authenticity and independence. This call for authenticity and
independence was contained, for example, in the dissident pro-
22
ject of a ‘parallel polis’ worked out by Václav Benda, advocating
the creation of parallel structures of intellectual, cultural, and
spiritual life that would ignore the official structures of social life
colonised by the Communist Party, its coercive power, and its
20. Ivid., 75.
21. T. Adams, “Charter 77 and the Workers’ Defense Committee KOR: The Struggle for Human
Rights in Czechoslovakia and Poland,” East European Quarterly 26 (1992): 222-24.

12 Political Dissent, Human Rights, and Legal

Transformations
aggressive ideology. At the same time, Benda called for using,
where possible, official structures of culture and politics to
23
humanize them.
Political dissent, its use of the concept of human rights, and its
attempts to challenge the existing political system, were part of a
more general problem of preserving and re-building political
identity. Advocating ‘alternatives’ to the communist system sup-
ported liberal democratic politics and pluralistic civil society.
Associations, civil organisations, and pressure groups were not
allowed under communism, yet the concept of civil society was
very popular among dissidents living under the communist
regimes and constituted the important strategy of the political
24
opposition. The dissident concept of civil society heavily
romanticised the spontaneous order of liberal societies and con-
trasted it to totalitarian surveillance, planning and political con-
trol. The difference between civil society and totalitarianism was
the focus of one of the most prominent criticisms of the
communist system based on the difference between moral and
immoral politics.
This re-entry of civic morality into the political and legal sys-
tems would become one of the first goals after the collapse of
25
communism. In postcommunist Central Europe, civil society
was perceived as a specific tradition that had strong symbolic
value during the communist period and the early phases of
postcommunist constitution-making. Civil society represented
values and virtues such as individual freedom, cooperation,
spontaneity, solidarity, public initiative, protest, intellectual cri-

22. Václav Benda, Milan Simecka, Ivan M. Jirous, Jiri Dienstbier, Václav Havel, Ladislav
Hejdanek, and Jan Simsa, “Parallel Polis, or an Independent Society in Central and Eastern
Europe: An Inquiry,” Social Research 55 (1988): 214-22.
23. H. Gordon Wilson and Paul Wilson, Civic Freedom in Central Europe: Voices from Czecho-
slovakia (London: Macmillan, 1991), 35-36; see also Martin Palouš, “The Parallel Polis after
Twelve Years,” Uncaptive Minds 2 (1989): 36-39.
24. Grazyna Skapska, “Between ‘Civil Society’ and ‘Europ’: Post-Classical Constitutionalism
after the Collapse of Communism in a Socio-Legal Perspective”, in Jir##í Pr##ibán# and James
Young, eds., The Rule of Law in Central Europe: The Reconstruction of Legality,
Constitutionalism and Civil Society in the Post-Communist Countries (Aldershot, UK:
Ashgate, 1999), 205-14.
25. Larry Diamond, “Rethinking Civil Society: Toward Democratic Consolidation,” Journal of
Democracy 5 (1994): 4-29.

East European Politics and Societies 13

tique, recognised political dissent, and many other aspects of
26
communal life destroyed by communists.
Furthermore, civic morality as a reference point of political
identity was enhanced by the call for ‘return to Europe’ that was
echoed in all postcommunist societies. No wonder that dissidents
would mostly support pro-European politics and first
postcommunist presidents, such as Václav Havel and Arpád
Göncz, significantly contributed to the integrationist ethos of one
united Europe in the 1990s. Civil society and morality were
expected to facilitate social and political change both at the
national and European level.
For instance, in the Polish context, the emerging ‘civil society’
was supposed to substitute the collapsing system of communist
power, and the pluralistic framework of the Solidarity movement
27
was naively believed to evolve into democratic pluralism.
Although the civil society and democratic traditions were differ-
ent in each country, civil society always retained the strong sym-
bolic value of being a suppressed social structure in which
human dignity and autonomy used to be guaranteed and which
28
survived in dissident circles during the communist era. The
prominent Hungarian dissident and writer Györg Konrad sought
to transform the dissident experience of resistance into a more
general argument for government limited and controlled by the
activism of civil society. He called for an ‘antipolitics’ that would
permanently challenge existing governmental actions, ideology
29
and control.
Comparing the concept of antipolitics with the concept of non-
political politics popular in the Czech dissident movement, it is
possible to detect striking similarities of intellectual élitism, the
romantic critique of bureaucratic power-making processes, and a

26. Michal Buchowski, “The Shifting Meanings of Civil and Civil Society in Poland,” in Chris
Hann and Elizabeth Dunn, eds., Civil Society: Challenging Western Models (London:
Routledge, 1996), 79-98; see also Vladimir Tismaneanu, In Search of Civil Society: Inde-
pendent Peace Movements in the Soviet Bloc (New York: Routledge, 1989).
27. Wiktor Osiatynski, “Revolutions in Eastern Europe, University of Chicago Law Review 58
(1991): 855.
28. Gaspár Miklos Tamás, “A Disquisition on Civil Society,” Social Research 61 (1994): 205.
29. Györg Konrad, Antipolitics (New York: Hartcourt, Brace, Jovanovich, 1984), 227; see also
David Ost, Solidarity and the Politics of Anti-Politics (Philadelphia: Temple University
Press, 1990).

14 Political Dissent, Human Rights, and Legal

Transformations
strong belief in the value of parallel activism driven by a sense of
30
communal solidarity instead of by a struggle over power. The
dissident concept of community was often very close to a notion
of the natural state based on complete harmony and the ultimate
31
unity of different wills. The dissident community contrasted
civic virtues to society dominated by communist power and ide-
ology. The rejuvenation of the institutions and virtues of civil
society was considered the greatest problem confronting
32
postcommunist countries.
An important reason why the dissident civil society argument
was credible during the period of political and legal transforma-
tions of the early 1990s was also the peaceful character of the rev-
olutionary events, which did not end up in violence and civil war.
‘Civil disobedience’ and ‘civilised negotiations’ were the main
revolutionary tools. As it was dissident elements committed to
civil society that were principally responsible for the
33
institutionalisation of the liberal democratic rule of law, they
were able to exercise great influence over postcommunist consti-
tution-making. The constitutional transformations were sup-
posed to promote and protect the political virtues of civil society
by the force of law. The human rights–based jurisprudence of the
constitutional courts was perceived to be an important tool of
34
shaping this new, civil society–based political identity. In the
Central European nations searching for their political identity
after the 1989 revolutions, constitutional laws were perceived as
a vehicle for rebuilding the civil society and as the guardians of
civil virtue. Due to this close symbolic link between the con-
cept of civil society and the constitutional legislation, constitu-
tionalism achieved an almost heroic status because it secured a
differentiated, spontaneous, and well-ordered civil society.

30. Zdenek Kavan, “Anti-Politics and Civil Society in Central Europe,” in Martin Shaw, ed., Poli-
tics and Globalisation (London: Routledge, 1999).
31. Rudolf Bahro, The Alternative in Eastern Europe (London: Verso, 1981).
32. Ethan Klingsberg, “The State Rebuilding Civil Society: Constitutionalism and the
Postcommunist Paradox,” Michigan Journal of International Law 13 (1992): 866-67.
33. Andrew Arato and Jean Cohen, Civil Society and Political Theory (Cambridge, MA: MIT
Press, 1992), 70-80.
34. Ethan Klingsberg, “The State Rebuilding Civil Society,” 896.

East European Politics and Societies 15

Civil society, human rights, and postcommunist
legal transformations
The role of human rights in the struggle against the communist
regime was essential, and international human rights documents
provided a very useful argumentative support. Furthermore, as
for instance a Polish sociologist of law Jacek Kurczewski has
proved, civility and liberal values had always been intrinsic part
35
of the history of political protests against the communist regime.
Human rights existed as a normative project of dissident move-
ments a long time before they culminated in the politically organ-
ised and discursively systematized demands of the Solidarnosc
movement in the 1980s. Far from being merely imported from the
Western constitutional and political systems, human and civil
rights arguably represented the local political tradition that
needed to be ‘resurrected’ with the help of the international
human rights discourse and liberal democratic politics.
The moral universalistic vocabulary of human rights was typi-
cal of political dissent in communist countries. Despite the
importance of using a legalist approach against the communist
regime, dissidents often talked of a ‘higher responsibility’ and a
decent ‘human order’ that must stand behind any critique and
civil action aimed against the repressive power. The dissident
movement thus was hardly only a legal struggle against a political
power. It also was an attempt to better understand humanity itself
in the extreme situation of communist totalitarianism and its
36
repressions. Political activism was part of the dissidents’
awareness of freedom.
Although the concept of natural rights was not commonly used
in the dissident literature and political texts of the late 1970s and
1980s, the moral universalistic vocabulary standing behind the
legal critique of the communist power had the same implications
as the natural rights and natural law criticism of positive law and
legality. It is possible to speak of a ‘weak version’ of natural rights
and natural law discourse within the Czechoslovak and other
35. Jacek Kurczewski, The Resurrection of Rights in Poland (Oxford: Oxford University Press,
1993).
36. Erazim Kohák, Jan Patocka: Philosophy and Selected Writings (Chicago: University of Chi-
cago Press, 1989).

16 Political Dissent, Human Rights, and Legal

Transformations
national dissident movements. Under the surface of the legal bat-
tlefield and legalist language, it is possible to unveil the real rea-
sons for the dissident struggle against communism to be an ethi-
cal commitment to ‘the will to truth.’37 Pragmatically speaking, it
would be hard to imagine someone who would risk so much of
her or his life and comfort only to prove that the communist law
did not fit within the positive principles of formal legality.
The dissident human rights discourse left its typical ‘natural
rights’ and ‘democratic value-oriented’ birthmark in the emerging
constitutional systems of Central and East European countries.
European and international human rights documents invoked by
dissidents in the struggle against the totalitarian communist sys-
tem became a central focus of constitutional and legal transfor-
mations in Central and Eastern Europe and were adopted to pro-
vide a normative framework of the emerging liberal democracies
in postcommunist countries.
From the human rights perspective, the 1989 political changes
proved that basic human and political rights were inseparable
from the distribution of social welfare and therefore had to
become a fundamental pillar of the subsequent constitutional
transformations. The constitutional rights chapter of the Hungar-
ian Constitution was entirely revised during the round table talks
in 1989. Similarly, the first democratically elected Czechoslovak
Parliament enacted the Charter of Fundamental Rights and Free-
doms as early as January 1991. The legislator made the Charter
effectively the ultimate legal document of the country because it
legislated the principle that all other laws including the Constitu-
tion had to be consistent with the Charter’s provisions. The Char-
ter also tied the Czechoslovak constitutional and legal order with
the international system of the human rights protection, and Arti-
cle 10 incorporated the principle of priority of provisions of the
ratified international human rights covenants over ordinary laws.
The Czechoslovak Charter invoked the natural rights principle in
its preamble and, later, the same principle was made part of the
oath of a judge of the Constitutional Court of the Czech Republic
(Article 85 of the Constitution of the Czech Republic).
37. John Keane, The Power of the Powerless, 97.

East European Politics and Societies 17

 The binding force of international human rights covenants and
the principle of ‘humanity’ and ‘human dignity’ also heavily
determined a historical judgment of the Hungarian Constitutional
Court’s abolishing capital punishment in 1990. The judgment was
often criticised for being a political decision the purpose of
which was to support the accession of Hungary to the Council of
Europe. The reasoning was considered very weak from the legal
point of view, yet the judgment was a landmark decision in terms
of both the human rights commitment of constitutional justice
and the extent of judicial activism exercised by the Constitutional
Court of Hungary throughout the 1990s. It declared the capital
punishment unconstitutional due to its arbitrary character and
the violation of certain international covenants regulating the
respect for human rights including the right to life (Article 54,
Section 1 of the Constitution of the Republic of Hungary).
Similarly like the Czechoslovak Charter, the judgment of the
Constitutional Court indicated that ‘the ideological tide was turn-
38
ing’ in Hungary in the 1990s. Furthermore, it illustrated the
importance and inseparability of agency and institutional frame-
work during the period of postcommunist constitutional and
legal transformations. Under the presidency of Justice Sólyom,
the court introduced an extraordinary activist model of the pro-
tection of human rights that lasted until the replacement of most
of the judges in 1998.
Dissidents therefore symbolically won a long-term struggle for
human rights when emerging postcommunist constitutional
democracies incorporated their international and European stan-
dards into the reconstructed legal systems. They eventually suc-
ceeded in criticising the ‘socialist concept of human rights’ of the
official communist propaganda that denied basic political rights,
assaulted liberal democratic values, and focused mostly on the
egalitarian distribution of limited social welfare. Political failure
of dissidents in the post-1989 democratic politics thus went hand
in hand with their success to recognise the human rights and civil
liberties principles as a main referential point of the reconstituted

38. George Fletcher, “Searching for the Rule of Law in the Wake of Communism,” Brigham
Young University Law Review 17 (1992): 154.

18 Political Dissent, Human Rights, and Legal

Transformations
democratic rule of law. In this sense, it is certainly justifiable to
39
call the 1989 events a ‘liberal revolution’ and reaffirmation of
40
‘old ideas’ of democracy and civic pluralism.

Concluding remarks: On the systemic

role of dissent
The dissident struggle against communist totalitarianism was
undoubtedly influenced and often even motivated by the ethical
call for human authenticity and against ‘lies’ of political violence.
The revival of human rights, humanity, and human nature should
not, nevertheless, be understood merely as an attempt to deal
with the problem of political dissent and postcommunist trans-
formations in a transcendent natural law framework because dis-
sent is irreducible to a kind of political morality.
It is important to make a clear distinction between dissident
motives (ideologies) and social functions of dissent. The history
of the Czech anticommunist dissent is a good example of the nec-
essary transformation of the politics of authenticity into the prag-
matic political strategy that effectively used the ‘inauthentic’ lan-
guage and politics of the totalitarian regime to expose it to its
own limits. Without betraying the rhetoric of authenticity, dissi-
dents had to accept the challenges of communist legality and
enter its argumentative domain. What had begun as a struggle for
authenticity eventually had to transform itself into the legalist
critique of totalitarianism in general.
Former political dissidents certainly proved that ideas matter
and have to be taken seriously as a political force. They were cir-
culated in a particular ideological and social context and success-
fully ‘irritated’ the existing communist political system. Their
effect on the postcommunist political, constitutional, and social
transformations is beyond dispute despite the fact that dissidents
eventually either accepted the logic of democratic party politics

39. Bruce Ackerman, The Future of Liberal Revolution (New Haven, CT: Yale University Press,
1992); see also Stephen Holmes, “The Scowl of Minerva,” The New Republic, 23 March 1992,
27-33.
40. Ralf Dahrendorf, Reflections on the Revolution in Europe (New York: Random House,
1990).

East European Politics and Societies 19

and affiliated with new democratic power groups or ended up
marginalized and disappointingly left the world of politics during
41
the 1990s. Political authority of dissidents was originally enor-
mous in postcommunist societies, yet it did not materialise into
particular politics, programmes, and ideologies. Some dissidents
preferred to escape from politics immediately after the successful
1989 revolutions because their goal of political and individual
freedom had been achieved. Others continued in their political
activity only to be beaten by political opponents in the emerging
democratic systems during the 1990s.
Apart from many ideological, political, or economic explana-
tions, there is an important systemic one that reflects a specific
function of dissent in complex systems of modern societies: the
strategy of political dissent is not primarily normative and any
attempts to turn former dissident activities into a political
programme are therefore doomed to a failure; it is primarily
performative and driven by the need to communicate all the out-
side alternatives to the other subjects of totalitarian politics. The
voice of dissent started as a need to break the political silence,
the highest value of which was not any kind of alternative
normativism, but rather the practice of stepping outside the
codified borders of a repressive political system.
The dissident position cannot be fully acknowledged without
an understanding of the language of authenticity and ethics. Nev-
ertheless, political dissent cannot and should not establish a nor-
mative framework of social morality and political justice because
its orientation is primarily negative. From a general perspective,
dissident calls are the language of Socrates’ daimonion, which
spoke in warnings rather than in commandments. The most
important legacy of former dissidents in communist countries
consequently is that any form of political dissent is, first of all, a
warning against all attempts at ‘political normalisation,’ be it
totalitarian or pursued by democratically elected politicians. The
strategy of dissent has a uniquely powerful effect on the system

41. Petr Pithart, “Intellectuals in Politics: Double Dissent in the Past, Double Disappointment
Today,” Social Research 60 (1993): 752-55.

20 Political Dissent, Human Rights, and Legal

Transformations
 of law because it has the exterior power to disclose and point to
the danger of every legal ptydepe of both democratic and
totalitarian politics.

East European Politics and Societies 21

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