Transitions to constitutional democracies : the german democratic republic
By: MARKOVITS, Inga
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ArticlePublisher: Thousand Oaks : SAGE, January 2006The Annals of The American Academy of Political and Social Science 603, p. 140-154Abstract: All law reform must look for local precedents to build on. Does this claim also apply to formerly totalitarian states? Building on her research on East German legal history, the author asks whether there might be some generally applicable reasons explaining why in the German Democratic Republic the first tender shoots of a rule of law appeared before the collapse of socialism. She finds an inverse relationship between political and legal faith: as one declines, the other rises, and vice versa. The waning of utopian hopes tends to be compensated for by an increased interest in law and rights and by the growing professionalism of a disenchanted legal class. The author believes that not only is the "prerogative state" a constant threat to the "normative state," but that, vice versa, the practice of legality, even the legality of totalitarian state, can threaten and undermine the effectiveness of autocratic rule.
All law reform must look for local precedents to build on. Does this claim also apply to formerly totalitarian states? Building on her research on East German legal history, the author asks whether there might be some generally applicable reasons explaining why in the German Democratic Republic the first tender shoots of a rule of law appeared before the collapse of socialism. She finds an inverse relationship between political and legal faith: as one declines, the other rises, and vice versa. The waning of utopian hopes tends to be compensated for by an increased interest in law and rights and by the growing professionalism of a disenchanted legal class. The author believes that not only is the "prerogative state" a constant threat to the "normative state," but that, vice versa, the practice of legality, even the legality of totalitarian state, can threaten and undermine the effectiveness of autocratic rule.
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