Acceso usuarios
David Kosar, Attila Vincze
Constitutional conventions—the typically unwritten rules, based on the factual practice of constitutional actors, that inform, guide, and curtail the actions of those actors—are considered an essential part of the constitutional architecture in common law countries. In contrast, civil law countries have been considered less willing to embrace constitutional conventions. In post-communist European countries, legal formalism and the legacy of communist legal reasoning have further suffocated the debate on constitutional conventions even more than in the rest of the civil law world. The puzzle is whether there is room for constitutional conventions in Central Europe, despite the legacy of legal formalism and communist legal reasoning, and, if so, under what conditions. This Article addresses this puzzle and explores how constitutional conventions are understood and used in four countries (Czechia, Hungary, Poland, and Slovakia). It shows that not only the conceptualization of constitutional conventions, but also their role in political discourse and their justiciability, vary profoundly among those four countries, despite their shared Austro-Hungarian and communist legacies. This analysis yields two specific findings. First, constitutional conventions may play an important role in constitutional architecture within post-communist democracies belonging to the civil law family, but only under certain conditions. Based on the developments regarding constitutional conventions in Czechia, Hungary, Poland, and Slovakia, this Article identifies four tentative factors that contribute to the emergence and embeddedness of constitutional conventions—a lower level of majoritarianism that requires greater cooperation between constitutional actors, a stable political landscape and constitutional text, the nonexistence of an explicit rule of recognition in the constitution (that limits the sources of law to written law), and individuals trained in the common law world in crucial positions (at constitutional courts, in academia, and in politics) who embrace unwritten law. Second, the contestation of the meaning of constitutional conventions forms an essential part of the argument about constitutional conventions in the region.
