Out Of And Into Authoritarian Law

OUT OF AND INTO AUTHORITARIAN LAW This page intentionally left blank Out of and Into Authoritarian Law Edited by Andras Sajo Kluwer Law International The Hague / London / New York A C.I.P. Catalogue record for this book is available from the Library of Congress ISBN 90-411-1957-4 Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Norwell, MA 02061, U.S.A. [email protected] In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands. Layout and camera-ready copy: Anne-Marie Krens - Oegstgeest - The Netherlands Printed on acid-free paper All Rights Reserved © 2003 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Martinus Nijhoff Publishers. No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed in the Netherlands. CONTENTS CONTRIBUTORS vii Andrds Sajo Erosion and Decline of the Rule of Law in Post-Communism: An Introduction ix PART I - OUT OF AUTHORITARIANISM 1 2 Ruti Teitel Transitional Justice as Liberal Narrative Krisztina Morvai Hungarian Criminal Court Cases Concerning the (Retribution of the) 1956 Revolution 3 Alex Boraine Truth and Reconciliation in South Africa: The Third Way 4 5 6 1 3 15 31 Paul van Zyl Justice without Punishment: Guaranteeing Human Rights in Transitional Societies 53 Nenad Dimitrijevic Constitutional Democracy or How to Prevent the Rule of the People 75 Leszek Lech Garlicki The Democratic Limits to Authoritarianism in Democracy (When the State Knows Better What is Good for the People) 97 vi 7 Contents Gabor Halmai The Making of the Hungarian Constitution 111 PART TWO - INTO AUTHORITARIAN LAW 123 8 9 Richard H. Pildes The Inherent Authoritarianism in Democratic Regimes 125 Susanne Baer Police Power for a New Century? Constitutional Traps and Constitutional Options Regarding S