The Struggle for Legal Reform after Communism

The working paper contains an extended review essay of Zdenĕk Kuhn, "The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation?" (2011). The central thesis of the book is that 'there is a deep continuity in the methods of legal reasoning employed by lawyers in the region, starting in the era of Stalinist Communism, continuing through the era of late Communism of the 1970s and 1980s and up to the current post-communist period'. In this respect the book's analysis is retrospective, starting in the late nineteenth century, when the Central European legal culture emerged within the 'Austrian legal tradition'. It provides a rich analysis of legal thinking, institutional practices, and expert as well as public discourse concerning judges, courts and judicial process over the course of the whole of the twentieth century in the region. The book's central argument concerns our time, however. The continuity of Central European legal thinking is, according to Kuhn, 'manifested in the problems of the first two decades after the collapse of Communism'. In this regard the book turns to the present and future of Central Europe and becomes missionary, offering a diagnosis together with a prescription. The cure lies, essentially, in catching up with the West and adopting its 'new European legal culture'. More concretely, Kuhn argues empathically for the empowerment of the judiciary, which would in his view correspond to the development in the West throughout the second half of the last century. The result is rather ambiguous. On the one hand, the book is engaging and worth reading for anyone interested in post-communist Europe and its past. The book however serves as an interesting exhibit in the gallery of post-communist legal culture, rather than an accomplished study thereof. In what follows I will firstly introduce the book and then turn to its problematic features, which relate to the (still) prevailing discourse concerning post-communism in Europe.